Supreme Court of Canada
Grand Trunk Railway Co. of Canada v. Hainer / Grand Trunk Railway Co. of Canada v. Hughes / Grand Trunk Railway Co. of Canada v. Bready, (1905) 36 S.C.R. 180
Date: 1905-05-02
The Grand Trunk Railway Company of Canada (Defendants) Appellants;
and
Mary Hainer (Plaintiff) Respondent.
The Grand Trunk Railway Company of Canada (Defendants) Appellants;
and
George Hughes (Plaintiff) Respondent.
The Grand Trunk Railway Company of Canada (Defendants) Appellants;
and
Joseph Richard Bready (Plaintiff) Respondent.
1905: April 3, 4, 5; 1905: May 2.
Present: Sedgewick, Girouard, Davies, Nesbitt and Idington JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Negligence—Railway company—Excessive speed—Fencing—Railway Act, 1888, ss. 194, 197—55 & 56 V. c. 27, 9. 6 (D)—Evidence—Reasonable inferences.
The provisions of 55 & 56 Vict. ch. 27, sec. 6 amending sec. 197 of The Railway Act, 1888, and requiring, at every public road crossing at road level of the railway the fences on both sides of the crossing and of the track to be turned into the cattle guards applies to all public road crossings and not to those in townships only as is the case of the fencing prescribed by sec. 194 of The Railway Act, 1888. Grand Trunk Railway Co. v. McKay (34 Can. S.C.R. 81) followed.
Three persons were near a public road crossing when a freight train passed after which they attempted to pass over the track and were struck by a passenger train coming from the direction opposite to that
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of the freight train and killed. The passenger train was running at the rate of forty-five miles an hour, and it was snowing slightly at the time. On the trial of actions under Lord Campbell’s Act against the Railway Company the jury found that the death of the parties was due to negligence “in violating the statute by running at an excessive rate of speed” and that deceased were not guilty of contributory negligence. A verdict for the plaintiff in each case was maintained by the Court of Appeal.
Held, that the Railway Company was liable; that the deceased had a right to cross the track and there was no evidence of want of care on their part and the same could not be presumed; and though there may not have been precise proof that the negligence of the company was the direct cause of the accident the jury could reasonably infer it from the facts proved and their finding was justified. McArthur v. Dominion Cartridge Co. ([1905] A. C. 72) followed; Wakelin v. London & South Western Railway Co. (12 App. Cas. 41) distinguished
Held also, that the fact of deceased starting to cross the track two seconds before being struck by the engine was not proof of want of care; that owing to the snowstorm and the escaping steam and noise of the freight train they might well have failed to see the head-light or hear the approach of the passenger train if they had looked and listened.
APPEAL from decisions of the Court of Appeal for Ontario maintaining the verdict at the trial in favour of the plaintiff in each of the three cases.
The facts of the case will be found in the above head-note and in the judgment of Mr. Justice Nesbitt on this appeal.
The cases were not consolidated in the Ontario courts but were tried together and argued together in the Court of Appeal whose decision was given on all three on the same day.
Riddell K.C and Rose for the appellants. The speed of the train at over six miles an hour was not negligence. The limitation does not attach if the track is properly fenced and under The Railway Act, 1888, secs. 194 et seq., fencing is only required in townships.
If there was negligence plaintiffs have not proved that it was the direct cause of the accident and therefore cannot recover. Wakelin v. London & South
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Western Railway Co.; Montreal Boiling Mills Co. v. Corcoran; Canadian Coloured Cotton Mills Co. v. Kervin.
Staunton K.C. and Lancaster for the respondents, cited Grand Trunk Railway Co. v. Birkett; Harris v. The King.
SEDGEWICK and GIROUARD JJ. concurred in the judgment of Mr. Justice Davies.
DAVIES J.—These actions were brought under Lord Campbell’s Act to recover damages for the negligence of the defendant railway company causing the death of the three deceased persons who were killed in the village of Grimsby at a point where the appellants railway crosses Depot Street.
The jury found that the accident was due to the negligence of the railway company “in violating the statute by running (their train) at an excessive rate of speed,” and that the deceased persons “could not by the exercise of reasonable care have avoided the accident”
The trial judge directed judgment to be entered in each case for the amount of the verdict rendered and the Court of Appeal refused to disturb the judgment so entered.
The main contentions of the railway company on this appeal were: 1st, that the statutory provisions limiting the rate of speed at which railway engines may pass through any thickly peopled portion of any city, town or village, to six miles an hour, unless the track was fenced in the manner prescribed by law had no application to crossings at villages because the
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duty to fence was only imposed by the statute in townships, and if the statute required no fence, and under the circumstances there was no necessity for cattle guards, section 197 did not apply; 2ndly, that there was no evidence to connect the alleged negligence with the accident; and thirdly, that the trial judge erred in refusing to charge the jury as to the duty of persons about to cross a railway track to look both ways for an approaching train.
As to the application of the statutory provisions regulating the rate of speed at which trains may run through thickly peopled portions of cities, towns or villages, we had occasion to consider the point very fully in Grand Trunk Railway Co. v. McKay, and I see no reason whatever to doubt the conclusions which we there reached. The controlling sections of the Act are the 197th and 259th. The latter expressly prescribes the limitation on the speed at which the trains are to cross the highways unless the track is fenced in manner prescribed by the Act, and the 197th section is imperative as to the fencing required. Where the prescribed fencing exists the limitation in speed does not apply, where the fencing is absent it does. There was no fencing at the railway crossing in the village of Grimsby where the accident occurred and the express train was admittedly running at the rate of forty-five miles an hour which, in my judgment, was in direct violation of the statute.
Mr. Riddell contended that there was no evidence connecting the statutory negligence with the accident and he relied upon Wakelin v. London and South Western Railway Co., together with cases decided by this court as authority for the proposition that there must be either direct evidence shewing such connec-
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tion or presumptions weighty, precise and consistent to that effect.
There can, I take it, be no doubt as to the correctness of this general proposition. In the absence of any direct evidence or of facts from which an inference may reasonably be drawn that the accident was directly occasioned by the alleged negligence the defendants cannot be held liable. The late case of McArthur v. Dominion Cartridge Company, is instructive upon the point that in certain cases it is not necessary to give exact proof of the fault which certainly caused the injury but that it is sufficient if the facts are such as to justify a reasonable inference that such was the case and exclude any other inference.
But the facts proved in this case do not appear to me to admit of any inference but one. The deceased parties were killed by the express train as they were going over the railway crossing, and the train was at the time running, in violation of the statute, at the rate of forty‑five miles an hour. No evidence of recklessness or want of care on the part of the deceased was offered. So far as the evidence did go they appeared to have acted as prudent persons should. There is here no reasonable room for conjecture. The parties themselves were all killed and no eye witness actually saw them killed. But the jury, on evidence which fully justified them in so finding, found as an irresistible inference from the facts that they were killed by the express train running at a rate of speed prohibited by statute. Under these circumstances I cannot see how the case of Wakelin v. South Western Railway Co. at all applies. The circumstances there established were held to be equally as consistent with the allegations of the plaintiff which he was bound to prove as with the denial of the defendants. The conclusion to be drawn
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was essentially a matter of mere conjecture and that is not sufficient. In that case there was negligence proved but no proof that it was the immediate or proximate cause of the accident. The finding of the jury there was as the Lord Chancellor said “without a fragment of evidence to justify it.” In the absence of direct evidence there must of course be such facts proved that an inference may be reasonably drawn from them connecting the accident with the negligence and shewing the latter to have been the direct proximate cause of the accident. In this case I cannot see how any other inference could be reasonably drawn from the facts than that which the jury drew. It may well be that in negligence cases there is not and there ought not to be any necessary presumption either way as to facts requiring proof. The unfortunate persons who were killed on the occasion in question were proved to have been standing alongside of the track awaiting the passing of a freight train in front of them. They were proved to have been properly looking at the advancing freight train. The express train rushing along at forty-five miles an hour in an opposite direction to the freight train passed the latter after it had gone over the street crossing a very short distance. The time of night, the conditions of the weather, and the noise, dust and smoke caused by the freight train, all combined, might well have prevented them seeing the express approaching even if they did look. Only a few seconds elapsed, probably two, between the passing of the last car of the freight train one way over the crossing and the engine of the express train the other way. It was not necessary, in my opinion, to presume one way or the other as to their having looked to see if another train was approaching from the opposite direction to which the freight train was going. If they did look the existing circumstances as
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found might easily have prevented them seeing, and if the defendants have, in order to escape liability, to rely upon contributory negligence of the deceased parties the onus of proving it affirmatively, in the first instance at any rate, rests upon them and they have failed to discharge it. See judgments Lords Blackburn and Watson in Wakelin v. London and South Western Railway Co.9, at page 43.
The general rule as to the necessity of persons crossing a railway track or street car track looking both ways to see whether they can safely cross is a most salutary and proper one. But that it is not an absolute and arbitrary one admitting of no exceptions under any circumstances seems to be apparent from the late case of Barry Railway Co. v. White.
It seems to me however, clear that in the absence of any direct evidence on the point the finding of the jury of the absence of contributory negligence cannot under the circumstances of this case be open to any question. Neither party could or did give any direct or positive testimony, and the plaintiffs certainly were not bound to prove a negative in order to entitle them to verdicts in their favour.
It seemed to me at the argument and reflection has only further convinced me that when Mr. Riddell failed to sustain his contention as to the speed of the train not being in violation of the statute his other point vanished. If the train was being rushed through this thickly populated village at a rate of speed nearly eight times as great as that permitted by law that was of course an act of great negligence. If in crossing the highway at such speed the train killed the unfortunate people who while lawfully going along the highway were at the moment on the railway crossing it did seem a most unreasonable propo-
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sition in the absence of any negligence on their part to say—the train was rushing along at a prohibited speed, it is true, but as the persons it struck are all killed and no one else saw the accident the company must not be held liable unless there is actual evidence that the deceased looked both ways for trains before going across the track. If such was the law the result would be that in most cases where the parties were killed outright such evidence would necessarily be wanting and the company would have complete immunity. The more reasonable doctrine is that to be found in McArthur v. Dominion Cartridge Co., before referred to, that the absence of exact proof of the fault which caused the injury is not necessarily fatal to the plaintiffs’ case provided such fault can from the proved facts be reasonably inferred and is not mere conjecture. That is the principle on which I would base my judgment and applying it to the facts of the case as proved I think it fully justifies the verdicts found.
Then with respect to the judge’s charge, as to which exception has been taken, I have read it most carefully and I am bound to say that taking it as a whole, as we are bound to do, I do not think it open to serious objection.
NESBITT J.—These are three actions brought under Lord Campbell’s Act to recover damages for the death of two young women and a young man, who were killed on the defendants’ line of railway (at Grimsby station), as alleged, by their negligence.
The question for us is whether the learned judge at that trial ought to have withdrawn the case from the jury and directed a verdict for the defendants. I was of opinion at the conclusion of the very able argument which was addressed to us at great length by counsel
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for both parties that the judgment in favour of the plaintiffs was wrong and that the defendants were either entitled to a new trial or to have had a non-suit entered for them at the close of the case. A careful perusal and consideration of the evidence has, however, convinced me that the judgment in favour of the plaintiffs should be affirmed and the appeal dismissed with costs. While the learned judge’s charge to the jury may be open in two particulars to criticism I think it it is substantially correct and that he was right in not withdrawing the case from the jury. As, however, there was a great deal of discussion upon the various points involved I propose stating what I conceive to be the result of the authorities in each of the questions involved.
The evidence is that the defendants operate at this point two main lines of railway, Grimsby being situated midway between Niagara Falls and Hamilton. There are also at the point in question several sidings. On the night of Sunday, the 7th December, 1902, at about 8.30, the young women and the young man having been at church were returning to their homes and in so returning were obliged to cross several of the sidings, and as they came up to the south main track a freight train consisting of about forty cars and drawn by an engine was passing to the east. The three persons who were killed were last seen standing about eight feet south of the south track of the defendants’ railway apparently waiting for the freight train to pass. The last cars of the freight train having gone completely past the crossing met the engine of the express going west at a distance of three or four car lengths from the crossing just east of the station, so that at the moment the engine of the express passed the rear cars at a distance of from one to two hundred feet from the crossing the three per-
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sons must have attempted to cross the track and proceeded about eight or ten feet when they were struck and killed. The express was going at the rate of about forty-five miles an hour which would make it travel about sixty-six feet per second, so that from when it passed the rear cars of the freight train to the time it would go over the level crossing would be between two and three seconds, and if the deceased moved forward at say three miles per hour they would cover about nine feet in two seconds. The evidence seemed clear that standing where deceased were eight or ten feet from the track the head light of the approaching engine could under ordinary conditions be seen for a considerable distance down the track. There was evidence that there was a little wind from the west with light flurries of snow and that a freight train passing, as the one in question did, necessarily raised a considerable quantity of dust and smoke which would probably obscure the head-light and the noise made by the freight train would almost certainly drown the noise of the approaching express.
The negligence charged was the running of the express at this point at an excessive rate of speed under the provisions of section 259 of the Railway Act as amended by 55 & 56 Vict., ch. 27, sec. 8, which is in the following language:
No locomotive or railway engine shall pass in or through any thickly peopled portion of any city, town or village, at a speed greater than six miles an hour unless the track is fenced in the manner prescribed by this Act.
As I have said the evidence was clear that the train was running at not less than forty-five miles an hour. The plaintiffs also charged negligence in not giving the statutory signals of bell or whistle. This I may dispose of at once by saying that the evidence seems clearly to negative this charge of negligence, and the jury must
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also be taken to have negatived this charge as they only found the negligence to consist of excessive speed. It was also charged that the company was negligent in not having provided a gate or watchman at the crossing. This is disposed of by this court in Grand Trunk Railway Co. v. McKay, which had not then been decided in this court. The only negligence upon which plaintiffs relied at the argument before this court was excessive speed under this section of the Railway Act I have quoted. Mr. Riddell argued that this section was not applicable as the crossing was in an incorporated village and that the only fencing prescribed by the Act was under section 194 of the general Railway Act, and sec. 6 of 55 & 56 Vict. ch. 27, which latter is in the words following:
At every public road crossing at road level of the railroad the fences on both sides of the crossing and on both sides of the track shall be turned into the cattle guards so as to allow the safe passage of trains.
Mr. Riddell argued that as section 194 only prescribes the building of a fence on each side of the railway through the organized townships, that there was no liability to fence in cities, towns or villages, and section 259 did not apply; that as the object of the Act in maintaining cattle guards and return fences so as to prevent horses, cattle, sheep or swine, etc., from getting on the track was to provide for the safety of passengers the statute having created a duty with the object of preventing a mischief of a particular kind persons who by reason of a neglect of the statutory duty suffered a loss of a different kind were not entitled to maintain an action in respect of such loss. This doctrine is of course well recognized in such cases as Gorris v. Scott; Buxton v. North Eastern Railway Co.; Vanderkar v. The Rensselaer and Saratoga Railroad Co.. In the last named case
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it was held that the provision in the statute of 1848 requiring railroad companies to construct and maintain cattle guards at all road crossings sufficient and suitable to prevent cattle and other animals from getting on the railroad, does not apply to cities and villages because the statute made an obvious distinction between streets or villages and townships; also Parker v. Rensselaer and Saratoga Railroad Co., where the same doctrine was affirmed. See also Pollock on Torts (7 ed.), p. 26; Hardcastle on Statutes (2 ed.), 255; Beven on Negligence (2 ed.), 764; Cleveland Railway Co. v. Wynant. I do not think the principle in these cases can be made to apply to the case at bar. Section 6, which I have quoted above, seems to make cattle-guards and return-fences imperative at every public road crossing at road level, and this being a public road crossing within the limits of an incorporated village is not fenced in the manner prescribed by the Act, and I do not think that this fencing is prescribed for the same reasons as the fencing required by section 194 in townships.
It was argued that the trial judge should have nonsuited on the authority of the case of Wakelin v. London & South Western Railway Co., at page 45, and that that case was not distinguishable from the present case, inasmuch as assuming negligence on the part of the defendants the evidence fell short of proving that the immediate and proximate cause of the calamity was the negligence of the defendants. The court stated it was left to mere conjecture as to whether it was the causa causans, and that the plaintiffs undertook to establish negligence as a fact and that such negligence was the cause of the death of the deceased. If in this case it had been shewn that the defendants were approaching the track or standing within a few
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feet of it when last seen, and that the train was approaching in clear view or its approach could be distinctly heard by any one paying due attention, and that if the deceased had looked or listened they must have seen or heard the approaching train, I think it would have been the bounden duty of the trial judge to non-suit. But that is not this case. The jury have a right to infer that the deceased attempted to cross the track and while there is no presumption that they behaved with care (as to which I will speak later), there is no presumption that they behaved recklessly, and as the evidence fails in the important link for the defendants that it does not establish that if the deceased had looked they could have either heard the train or seen it but owing to the noise of the freight and the obscurity created by the smoke and dust the contrary is to be inferred, I think the case must go to the jury to establish contributory negligence in the deceased, and as the jury have negatived that the defendants must fail. In the Wakelin Case19 there was nothing to shew how the accident occurred. Here there is only one conclusion to be drawn, viz. that the deceased started to cross two seconds before the passenger engine arrived at the crossing, and the difficulty for the defendants is that it is a question of fact whether by using due care the deceased could have seen or heard the train with the dust, smoke and noise, and so the case must go to the jury. The line is an extremely narrow one but I desire to repeat that had it appeared by the evidence in this case for the plaintiffs that the defendants were guilty of negligence, yet, had the deceased exercised that care both of sight and hearing that they were bound to exercise they must have seen or heard the approaching train then there would have been nothing for the jury because there would have
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been a failure on the part of the plaintiffs to prove that the negligence established was the immediate and proximate cause of the calamity and the court would have been left to mere conjecture as to whether the accident occurred owing to the defendants’ negligence or to the negligence of the deceased in not looking. But where, as in this case, the evidence establishes that even if the deceased exercised due care the accident might occur, then, I think, the case must be submitted to the jury. It was urged most strenuously that the court had a right to assume that the deceased were aware that the law required the company to run at this point at a rate not exceeding six miles an hour because of the failure to fence, and therefore had a right to assume that they had plenty of time to cross. I entirely disagree with this suggestion. In the first place I think the reasonable assumption is that people living in the immediate neighbourhood of the station would be likely to be aware that the express train which was due at this hour was accustomed to pass at the rate of forty-five miles an hour and upwards, and I think it is somewhat a violent assumption that the deceased would be aware that the court would subsequently to the accident declare that the express train was violating the law in running at this point at this high rate of speed, or that the construction I have put upon the statute in the present case was the proper construction. I do not think that the court can assume in the face of our common knowledge that trains do run at this high rate of speed and that people are accustomed to see them run at this high rate of speed in violation of section 259 that any such consideration entered into the calculations of the deceased before attempting to cross the track. I think such presumptions in the face of our common knowledge of their falsity come well within
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the description of “monstrous propositions” referred to by Lord Esher in Ex parte Mercer; In re Wise, when he was asked to draw a presumption in a very different type of case but a presumption which he felt was entirely inconsistent with the facts and which he refused to draw, notwithstanding the proposition had the support of dicta of great and eminent judges. I think that if a man looks and sees a coming train and crosses with full knowledge of its approach he does so at his own risk. I think also that if he is ignorant when under the circumstances as between him and the company he ought to have known that the train was approaching, his legal position does not differ from that which it would have been if he had actually known what by using due care he would have known. To hold otherwise would be to enable a person to take advantage of his own wrong. And here, were it not for the fact that the evidence discloses that even if the deceased were careful the accident could still have happened because the noise of the freight train would probably prevent the sound of the express train being heard, and the dust and smoke of the freight and the flurries of snow would probably prevent the train being seen, I would unhesitatingly hold the plaintiffs could not recover. It was argued that the cases in this court of Montreal Rolling Mills Co. v. Corcoran; Canadian Coloured Cotton Mills v. Kervin; and also Young v. Owen Sound Dredge Co., and Brown v. Waterous Engine Works Co., were qualified by the recent decision of the Privy Council in McArthur v. Dominion Cartridge Co.. I am unable to accede to this contention. I do not think that the McArthur Case24 has made
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any change in the law. It was admitted in that case that there was no proof of contributory negligence. It was not pretended that the accident could be accounted for as coming under the head of inevitable accident, nor was it contended that there could be any reasonable explanation of the mishap other than that insisted on by the plaintiff, viz., that the evidence disclosed that cartridges were occasionally presented in a wrong posture and that the final blow or punch which was necessary to complete the operation of manufacture because of this wrong posture sometimes fell on the side of the cartridge and sometimes on the metal end in which the percussion cap had been inserted, and that such presenting of the cartridges in a wrong posture was due to the defective working of the automatic fingers which the company’s superintendent had designed. There was also apparently a defect in the outside powder box in this that the explosion which should have spent itself in the open air took effect inwards. The Privy Council said the jury very properly inferred, and could only infer, that the accident happened through the negligence of the defendants. The Privy Council also held that in that particular case of an explosion where the accident was the work of a moment and its origin and cause incapable of being detected the necessity for proof existing in other classes of cases was dispensed with. I cannot see that the McArthur Case24, which is sui generis, has in any way interfered with the doctrine laid down in the other cases I have referred to or with the doctrine in Wakelin’s Case. I entirely dissent from the view expressed by Armour, Chief Justice of Ontario, in Young v Owen Sound Dredge Co. that the cases in this court had gone far beyond the Wakelin Case. I agree
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with the result of his judgment and think that the ground upon which the judgment should have been based was that stated both by Mr. Justice Osler and Mr. Justice Lister in the same case
that the evidence failed to show how the unfortunate man fell off the boat.
In this case the deceased had a right, using due care, to cross the track, and there is no evidence that with the exercise of that due care the accident would not have happened. On the contrary the evidence would seem to indicate that under the peculiar circumstances of this case the deceased, using every care both in looking and listening, would probably have met their death. It is to be observed that the time when they could first see the train until the accident happened was a period of about two seconds, and that looking and listening two seconds before they stepped upon the track the evidence is that probably they would not have seen or heard the train. There is no doubt that the accident happened by their being struck by the swiftly approaching train.
On the question of new trial, I have said there were certain portions of the charge open to criticism. The learned trial judge, in one part of his charge, stated to the jury that
they must assume that the deceased were not guilty, unless there was evidence to show that they were guilty, of contributory negligence.
Had this stood alone I should have thought a new trial should have been directed but I think it was corrected by his direction in other parts of the case. I think that there is no presumption one way or the other. The true rule is laid down in the recent case of Pomfret v. Lancashire and Yorkshire Railway Co., where Collins M.R. says:
In the present case the county court judge has based his judgment upon his right to assume that everything has been properly done; he has relied
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upon the proposition “omnia prcesumuntur rite esse acta;” but I do not think that that is the correct view to take, or that there is any such presumption in such a case as that before us, for in Wakelin v. London and South Western Railway Co., the House of Lords declined to act upon the presumption that the deceased man had behaved with care.
It was urged that in Texas & Pacific Railway Co. v. Gentry, the Supreme Court of the United States had drawn an opposite presumption, and so the head-note appears, but an examination of that case where the doctrine is dealt with at page 367 does not seem to me to justify the head-note but, on the contrary, seems to me to be in accord with the English doctrine. The court says:
Those who are crossing a railroad track are bound to exercise ordinary care and diligence to ascertain whether a train is approaching. They have, indeed, incentive to caution, for their lives are in imminent danger if collision happen; and hence it will not be presumed, without evidence, that they do not exercise proper care. This principle was approved in Baltimore and Ohio Railroad Co. v. Griffith. Manifestly it was not the duty of the court when there was no evidence as to the deceased having or not having looked and listened for approaching trains before crossing the railroad track, to do more touching the question of contributory negligence than it did, namely, instruct the jury generally that the railroad company was not liable if the deceased, by his own neglect, contributed to his death, and that they could not find for the plaintiffs unless the death of the deceased was directly caused by unsafe switching appliances used by the defendant, and without fault or negligence on his part.
This seems to be nothing more than saying there is no presumption one way or the other. The learned trial judge in this case also declined to charge that it was the duty of a man “under all circumstances” on approaching a railway track to look both ways to see whether a train was coming from either direction. I think as an abstract statement of law this is not correct and the learned judge was right in refusing to so charge. I also think that the judge did charge that, so far as the circumstances of the case were con-
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cerned, the deceased were bound to recognize that the trains were running both ways and that the degree of care that they did exercise he proposed to leave to the jury. As, however, the question was strenuously argued in this court as a ground of misdirection and the question as to whether it is the duty of a person approaching a railway track to look in both directions and listen for a train before crossing has been much discussed I propose to state shortly the authorities both in England, the United States and this country upon the subject I think the best discussion of the English authorities is to be found in the case of Coyle v. The Great Northern Railway Co., in the judgment of Chief Baron Palles. It is to be remembered that the judgment of Lord Cairns in the Dublin, Wicklow and Wexford Railway Co. v. Slattery, which is always relied upon for the doctrine that a person is not bound to look under all circumstances, was a judgment affirming a refusal by Chief Baron Palles to non-suit in that case, and therefore Chief Baron Palles’ analysis of that with other authorities is particularly valuable, and the result of his analysis is that all the cases establish that the plaintiffs conduct in crossing the line without looking, which is primâ facie negligence, may lose its character of negligence by reason of its being induced by the conduct of the company in stating in effect “there is no necessity to look, for the train is not coming”, or in other words, an act which would be negligent per se may cease to be negligent by reason of the invitation of the company to do the act which otherwise would have been negligence. There may be evidence of acts or omissions on the part of the company by which he might have been put off his guard and allowed to suppose that the might safely act as he did, namely, cross without looking, and in
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every case where a person who has not looked has succeeded against a negligent defendant there was such a departure from the ordinary usage or such other act on the part of the defendant as might reasonably have been held to be an inducement to cross, a statement by the company that a person was safe in crossing. Apart from this I think the cases clearly establish that if a man actually looks and sees a coming train and crosses with full knowledge of its approach he does so at his own risk; that, except as I have indicated, he is bound to look and to listen under the doctrine of using due care. A man does not use due care who does not look and listen unless he has been thrown off his guard by the company in the way I have indicated, and if it appears that had he used due care, (that is, looked and listened), he must have seen or heard the approaching train, he is guilty of such negligence as disentitles him from recovering. As I have pointed out, in Jamieson v. Harris, recently decided, the question of speed is not as a rule very important. The accident could not have happened unless the person was at that particular moment on that portion of the line. Had the train been faster he would not have been there; had the train been slower he would not have been there; had he been faster or slower he would not have been there. But the point is that his negligence in not using due care in looking or listening has brought him at that point at that particular moment and his negligence is therefore the causa sine qua non of his injury or death and is a contributory cause of his injury or death and so he cannot recover. This conclusion is justified by a long series of decisions. In this country I would refer to Nicholls v. The Great Western Railway Co.; Johnson v. Northern Railroad Co.;
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Winckler v. Great Western Railway Co.. In the Nichols Case35 the Chief Justice says, in referring to parties crossing a track without looking:—
If parties so acting can recover it must be solely on the ground that the defendants are a railway company and to hold them entitled, to damage notwithstanding the total disregard of their own safety is to encourage carelessness and endanger human life.
In the Winckler Case37 it is said, at page 264:
Then as to the necessity of the driver maintaining a look out, it is quite manifest that this was his duty; he cannot go on at all hazards because the other party is in fault. If this were so it would have been right of the plaintiff to have killed the donkey in Davies v. Mann.
And at page 269 Wilson J. says:
The defendants have a right to run their trains and they can neither go to the right nor left, nor can they stop them at once. Knowing all this, the legislature gave the defendants the right to run their trains and, I think, cast the duty upon those who cross their track not to rush in the way of their trains when in motion, which they cannot control.
In the Johnson Case the court said:
It is the duty of the traveller approaching a railway crossing to look along the line of railway track and see if any train is coming, and if he fails to take such precaution, and an accident happens, it is more than evidence of negligence in the traveller; it is little short of recklessness for any one to drive on to the track of a railway without first looking and listening to ascertain whether a moving locomotive is near. * * * * In general terms a neglect of duty on the part of a railway company will not excuse a person approaching a crossing from using the sense of sight and hearing, where those senses may be available; and when the use of either of these faculties would give sufficient warning to enable the party to avoid the danger contributory negligence is shown.
In England, Chief Baron Pollock, in Stubley v. The London & North Western Railway Co., says that a railway
is in itself a warning of danger to those about to go upon it, and cautions them to see whether a train is coming.
And Channell B. in the same case says:
But passengers crossing the rails are bound to exercise ordinary and reasonable care for their own safety, and to look this way and that to see if danger is to be apprehended.
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And in Skelton v. London and North Western Railway Co., Bovill C.J, in answer to the argument that the gate being open the deceased had a right to assume that the line was clear, says:
The deceased could not have supposed that the position of the ring showed that the line was clear, because the coal train was standing before the gate, and, if the crossing was rendered dangerous by obstruction to the view it only made, it more incumbent upon him to take due care. There is no evidence, however, that the deceased took any care or caution whatever. When he reached the first line of rails he could have seen three hundred yards, but it appears from the evidence that he did not look either to the right or left, but walked heedlessly on, and it was owing to this want of caution on his part that the accident occurred.
See also Cliff v. The Midland Railway Co.; Ellis v. The Great Western Railway Co.; Davey v. The London & South Western Railway Co.; Curlin v. Great Southern & Western Railway Co. of Ireland. In Allen v. North Metropolitan Tramways Co., the court was composed of Lord Esher M.R. and Lindley and Bowen L.JJ. It was a case where the accident happened upon a bridge upon which two tramway lines coalesced and the plaintiff when endeavouring to cross the road looked only in one direction and not in the direction from which the car was coming. There was some evidence that the car was going fast, and there was evidence that the plaintiff did not hear the car coming owing perhaps to the ground being covered with snow. The court, overruling the Divisional Court, held that it was clear from these facts that the plaintiff had only himself to blame for the accident. He walked into the tram car when if he had looked he must have seen it. In Lake Erie & Detroit River Railway Co. v. Marsh, upon an application for leave this court assumed that the law was as I have stated.
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The American authorities are very explicit. Mr. Justice Field, of the Supreme Court of the United States, in Chicago, Rock Island and Pacific Railroad Co. v. Houston, says, at page 701:
If the positions most advantageous to the plaintiff be assumed as correct, that the train was moving at an unusual rate of speed, its bell was not rung, and its whistle not sounded, it is still difficult to see on what ground the accident can be attributed to the “negligence, unskilfulness or criminal intent” of the defendant’s engineer. * * * She, the deceased, was bound to listen and to look before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into places of possible danger. Had she used her senses she could not have failed to both hear and see that the train was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others. If, using them, she saw the train coming, and yet undertook to cross the tract instead of waiting for the train to pass and was injured, the consequence of her mistake and temerity cannot be cast upon the defendant.
This case was reaffirmed in Texas and Pacific Railroad Co. v. Gentry, which I have already referred to.
In the State Courts it has been held in the case of Gorton v. The Erie Railway Company, at page 664:—
But these obstacles, if they existed, and hid from view the railroad and approaching trains to the extent claimed, did not relieve the plaintiff from the duty of looking for an east-bound train at the first opportunity, but rather rendered a cautious approach to the crossing the more necessary. Upon the undisputed evidence that, if the plaintiff had looked to the west, as he approached and reached the north track of the railroad, he could have seen the approaching train and that he did not look, he should have been non-suited.
And again, in McGrath v. The New York Central and Hudson River Railroad Co., the Court of Appeal says:—
In respect to a person travelling on a highway which is crossed by a railroad it has been settled, by a series of adjudications in this state, that he is bound on approaching the crossing to look and listen if by doing so he can discover the proximity of a moving train, and that the omission to
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do so is an omission of ordinary care which will prevent his recovering for an injury which might have been avoided if he had used his faculties of sight and hearing.
And again in Salter v. The Ulica and Black River Railroad Co.
The principle which requires that a man should use his ears and eyes in crossing a railroad track, so far as he has opportunity to do so, equally demands that he shall employ his faculties in managing his teams, and thus keep out of danger, and the fact that the view was obstructed for a certain distance imposed the greater obligation of holding his team in check.
And in Butterfield v. The Western Railroad Corporation, the plaintiff was struck while crossing the railroad on a highway. The night was dark and stormy and he did not look, although he listened for a train, relying upon a signal to apprise him of its approach. The Supreme Court held, assuming that the duty of sounding the bell or whistle was violated and that the plaintiff had a right to expect those signals to be given, that this did not relieve him from the use of both eyes and ears as he approached the crossing, and that a failure to do so was negligence and the plaintiff could not recover.
See also Central Railroad Co. of New Jersey v. Feller.
In Gardner v. Detroit, Lansing and Northern Railroad Co., the court says, at page 244:
We think the court below should have entered judgment for defendant upon the plaintiff’s own testimony and the findings of the jury. It was found that when the plaintiff was within five feet of the north rail he could, if he had looked, have seen eastward on the track a distance of two hundred and fifty feet. There was nothing to obstruct his view if he had looked * * * It is apparent, from the plaintiff’s own testimony, that he was not exercising due care in going over these tracks, A railway track is, in itself, notice and warning of danger, and we have repeatedly held that it is the duty of a person to look and listen before venturing upon it.
In New Jersey, in the case of Delaware, Lackawana & Western Railroad Co. v. Hofferan, the court says:
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A railroad track is a place of danger and any one who incautiously places himself upon it, and sustains damage in consequence of such carelessness, is entirely remediless. The law requires of all persons approaching such a point of peril the exercise of a reasonable caution, and if this duty is neglected, and an accident thereby occurs, it says to those who are thus in default that they must bear the ill which is the product in whole or in part of there own folly,” Pennsylvania Railroad Co. v. Matthew. The deceased was nut relieved of the duty of exercising the highest practicable degree of care in avoiding the danger to himself, and of looking each way for an approaching train, before crossing, because of the neglect of the defendant in failing to give proper statutory signals by ringing the bell or blowing the whistle on the locomotive.
See also Barnum v. Grand Trunk Western Railway Co.; Garlich v. Northern Pacific Railway Co.
I have cited these cases to demonstrate that the law, except where there are special circumstances such as I have indicated in discussing the Coyle Case, implies negligence if a person fails to take due care in approaching or crossing a railway crossing, and that due care means looking and listening.
It would scarcely be urged that if a man attempted to cross Broadway, in New York, where cable cars are seldom more than fifty or sixty feet apart, that he could recover if it was shown that he attempted to cross without looking in both directions. He would expect in that situation cars at any moment, and therefore he would be guilty of a want of due care in not looking. I conceive that if he is aware that he is crossing a railway track that he must in the same way expect a train at any moment and that unless he is misled into security by some act or omission of the company he is the author of his own injury if he meets with injury in crossing without looking.
The case of Barry Railway Co. v. White, was urged as assuming a doctrine different from what I have indicated. I do not so read the case. That was a case of lines of railway running alongside a dock,
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and the man injured was crossing these lines to get to the boat on which he was an engineer, the boat then lying in the dock; and his case was that he had no reason to expect a train and was not therefore negligent in not looking before crossing the track in question. It is quite true the defendants urged that the place where the accident occurred was in the nature of a shunting yard for goods traffic, and that the man injured should look behind him as well as in front of him before stepping on to the line. The report is not very clear and I do not find that the case is elsewhere reported, and it would seem to me not an ordinary case of railway crossing but to be a case where it must be a question for the jury whether the person crossing had a right to expect a train to approach without signals, the railway tracks being apparently in the dock yard. Nothing can be gathered from the judgment of the Lord Chancellor in directing a new trial, and I do not think the case throws any light upon the discussion. In my view there is no real clash in the cases upon the subject, although I admit that where the law of negligence is concerned the quotation by Baron Dowse from the Poet Laureate’s lines are most apt when he speaks of:
The lawless science of our law—
That codeless myriad of precedents;
That wilderness of single instances.
IDINGTON J.—I think that there was evidence in this case that had to be submitted to the jury and that the learned trial judge could not properly have withdrawn it from their consideration.
I see nothing in the learned judge’s charge that can properly be complained of as misdirection.
I am, therefore, of opinion that this appeal ought to be dismissed with costs.
Appeals dismissed with costs.
Solicitor for the appellants: W.H. Biggar.
Solicitors for the respondents: Lancaster & Campbell.
18 U.C.C.P. 250 at p. 257.
97 Mich. 240, at page 244.
57 N.J.L. 149, at page 153.
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