Supreme Court of Canada
Wabash Rd. Co. v. McKay, (1908) 40 S.C.R. 251
Date: 1908-05-05
The Wabash Railroad Company (Defendants) Appellants;
and
Ada McKay (Plaintiff) Respondent.
1908: March 19; 1908: May 5.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Maclennan and Duff JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Railway—Collision—Stop at crossing—Statutory rule—Company’s rule—Contributory negligence—R.S. [1906] c. 37, s. 278.
A train of the Wabash Railroad Co. and one of the Canadian Pacific Railway Co. approached a highway crossing at obtuse angles. The former did not, as required by sec. 278 of the Railway Act, come to a full stop; the latter did so at a semaphore nearly 900 feet from the crossing and receiving the proper signal proceeded without stopping again at a “stop post” some 400 feet nearer where a rule of the company required trains to stop. The trains collided and the engineer of the Canadian Pacific Railway Co. was killed. In an action by his widow:
Held, that the failure of the engineer to stop the second time was not contributory negligence which prevented the recovery of damages for the loss of plaintiff’s husband caused by the admitted negligence of defendants.
APPEAL from a decision of the Court of Appeal for Ontario affirming the verdict at the trial in favour of the plaintiff.
A collision occurred between trains of the Wabash Railroad Co. and the Canadian Pacific Railway Co., respectively, at a crossing about a mile from St. Thomas, Ont., and the engineer of the Canadian Pacific Railway train was killed. At the trial of an action by his widow, on behalf of herself and
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children, she obtained a verdict against the Wabash Railroad Co. for $10,000, which was affirmed by the Court of Appeal.
On appeal by the company to the Supreme Court of Canada it was admitted that the defendant company was guilty of negligence in not coming to a full stop before approaching the crossing as required by sec. 278 of “The Railway Act” and the only question raised was whether or not the deceased engineer was guilty of contributory negligence because, having come to a full stop at a semaphore about 900 feet from the crossing, he did not stop a second time at a “stop post” some 400 feet further on as required by the rules of his company.
The rules as to the “stop post” are the following:—
“The following instructions concerning Standard Stop Posts and Slow Posts are issued for the guidance of all concerned: Standard Stop Posts placed 400 feet from Railway Crossings at grade and drawbridges where interlocking plants are not in operation are indications of points at which trains are required to come to a stop and be governed by rule 98(c).”
Rule 98(c), referred to in the circular reads as follows—
“Unless there is an interlocking plant in operation, trains must stop and receive proceed signal from signalman before passing over a drawbridge or a railway crossing at grade.”
Rose for the appellant. A railway company is liable for the consequences of an employee’s disobedience of rules. Canadian Pacific Railway Co. v. Lawson; Labatt on Master and Servant, p. 941, sec. 363.
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The amount of the indemnity policy should have been deducted from the verdict. Hicks v. Newport, Abergavenny & Hereford Railway Co., approved in Bradburn v. Great Western Railway Co.
Robinette K.C. and Godfrey for the respondent.
THE CHIEF JUSTICE.—I am of opinion that this appeal should be dismissed with costs.
DAVIES J.—I concur for the reasons stated by Mr. Justice Maclennan.
IDINGTON J.—I concur for the reasons stated by Mr. Justice Duff.
MACLENNAN J.—The plaintiff is the widow of John McKay, an engineer of a Canadian Pacific Railway passenger train, who was killed in a collision between his train and a train of the appellant company, at a level crossing near St. Thomas, Ont., and she sued for damages for his death. At the trial the plaintiff obtained a verdict and judgment for $10,000, which was affirmed by the Court of Appeal, and this appeal is from that judgment.
Before the accident the trains were approaching each other at an angle of 122° 55’, the train of the deceased on an up-grade, and that of the appellants on a heavy down-grade.
Section 298 of “The Railway Act” enacts that
every train shall, before it passes over any such crossing * * * be brought to a full stop.
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The crossing is guarded by five semaphore signals, all operated by a man stationed at the crossing, where one of those signals is placed. The other signals, called distance semaphores, are placed at varying distances, about 800 feet from the crossing, two on each line, one on each of the four directions of the lines from the crossing.
The variation in the distance of those signals apparently depends on the grade of the approach to the crossing. The signal on the side from which the train of the deceased was approaching being 815 feet, and that on the opposite side 936 feet from the crossing, and that on the appellants’ line, on the side from which their train was approaching being 893 feet, and on the opposite side 703 feet from the crossing.
I think it is evident that these distance signals were intended by the respective companies to insure compliance with the section of “The Railway Act” above referred to, and to indicate the points on each line at which the full stop required by the statute is to be made before the train passes the crossing.
But, besides these semaphore signals, the Canadian Pacific Railway Company has placed a fixed post, about 400 feet from the crossing, marked STOP. It is a fixed signal, always speaking, not capable, like the others, of being opened and closed, and the appellants have no such additional signals on their line.
What then is the purpose and significance of this post? That is explained by rules of the company, 98(c) and 98 (d), and an instruction issued to its trainmen.
These rules are as follows:—
98(c)—Unless there is an interlocking plant in operation, trains must stop, and receive proceed signals from signal-men, before passing over * * * a railway-crossing at grade.
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98(d) Passenger trains must not exceed a speed of twelve miles, and other trains a speed of eight miles, per hour, over railway-crossings at grade.
And the instruction is as follows:—
Standard stop-posts, placed 400 feet from railway-crossings at grade * * *, where interlocking plants are not in operation, are indications of points at which trains are required to come to a stop, and be governed by rule 98(c).
Reading the statute and the rules and the instruction together, I think the stop-post is placed as an additional caution, and to ensure the full stop which the statute makes imperative, in case, for any reason, a train did not stop at the distance signal, and as indicating a point beyond which no train should proceed without coming to a stop.
The distance signals must be intended for the same purpose by both companies, that is, as signals for the stop required by the statute. The appellant company had no other, and there can be no reason suggested for two stops before crossing.
The jury found, as they were warranted in doing upon the evidence, although there was some evidence the other way, that the deceased’s train did stop at the distance semaphore; that he received a proceed signal from that semaphore, and also from the one at the crossing; and that his speed, at the crossing, was from ten to twelve miles an hour. They also found that the speed of the appellants’ train, at its distance semaphore, was forty-five miles an hour, and, at the moment of the collision, eight to nine miles an hour, and that the appellants’ engine was the one which struck the other.
It was not contended before us that the appellants were not guilty of negligence, which caused the accident, and the contention was that the deceased
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was guilty of contributory negligence, in not stopping at the stop-post.
In my opinion it is clear that, having stopped at the distance semaphore and having received a proceed signal from that, and also from the one at the crossing, and having approached the crossing at a speed not exceeding ten or twelve miles an hour, the deceased was not guilty of any negligence.
I think the appeal should be dismissed with costs.
DUFF J.—It seems to me to be clear that disobedience of an instruction such as that relied upon by the defendants cannot be regarded as, per se, a breach of the statute or of the statutory rule. The duty of the deceased, McKay, under the statute was neither more nor less than the duty of the company which employed him; and the duty of the company cannot, I think, be measured by the terms of the directions they may give to the persons whom they place in charge of their trains. The statute, in other words, cannot be said to prescribe one standard of duty for the Canadian Pacific Railway Company and another for the defendants. Neither do I think the question whether, in bringing the train to a stop at the semaphore, McKay did make a “full stop” in compliance with the statute, involves any question of fact which the learned judge was bound to submit to the jury. On that head the sole question for them to pass upon seems to me to have been that which the learned trial judge left to them, namely, whether in fact the train was brought to a full stop; and the legal result of the finding on that point, taken together with the undisputed facts is, I think, that the statute was observed.
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Then, was there any evidence of contributory negligence in fact on the part of McKay which could properly have been submitted to the jury? I think there was none.
The instruction referred to seems to be at best ambiguous, and reasonably open to a construction which would sanction the course which the jury found McKay actually took.
I should think it not open to dispute that the existence of an ambiguous instruction reasonably susceptible of a construction sanctioning a given course of conduct could not alone be sufficient evidence to support a finding that such conduct is negligent conduct. Evidence shewing that the instruction although open to such a construction was in practice acted upon in a different sense might, perhaps, alter the case. But we have nothing of the kind here. There is not the slightest evidence that McKay’s conduct was not in accordance with the practice under the instruction; on the contrary the only evidence touching the point is to the opposite effect.
I would dismiss the appeal.
Appeal dismissed with costs.
Solicitor for the appellants: H.E. Rose.
Solicitors for the respondents: Robinette, Godfrey & Phelan.
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