Supreme Court of Canada
Canada Atlantic Railway Co. v. Henderson, (1899) 29 S.C.R. 632
Date: 1899-06-07
The Canada Atlantic Railway Company (Defendant) Appellant;
and
Alexander Allan Henderson (Plaintiff) Respondent.
1899: June 7.
Present: Sir Henry Strong C.J., and Taschereau, Gwynne, King and Girouard JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Railway—Running of trains—Approaching crossing—Warning—Shunting—Railway Act, 1888, s. 256.
Sec. 256 of the Railway Act, 1888, providing that “the bell with which the engine is furnished shall be rung, or the whistle sounded, at the distance of at least eighty rods from every place at which the railway crosses any highway, and be kept ringing or be sounded at short intervals until the engine has crossed such highway” applies to shunting and other temporary movements in connection with the running of trains as well as to the general traffic.
APPEAL from a decision of the Court of Appeal for Ontario affirming the judgment of MacMahon J. at the trial in favour of the plaintiff.
The action was brought against the Canada Atlantic Railway Company by the plaintiff, who is a physician practising in the City of Ottawa, to recover damages for injuries sustained by him in an accident alleged to have been caused by the negligence of the defendant.
The accident in question occurred on Elgin Street, in the City of Ottawa, on the 21st day of August, 1896. At a point on Elgin Street, about 150 feet south of the centre line of Catherine Street, which crosses Elgin Street at right angles, Elgin Street is crossed on the level by the main line of the defendant company’s
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railway, and to the north and south of the defendant company’s main line are side lines which are used by the defendant for the purposes of its business. A flagman in the employ of the defendant company, was stationed at the crossing at the time of the accident in question.
On the day on which the accident happened the plaintiff was driving southward on Elgin Street in the direction of the railway crossing, intending, as he says, to proceed to his summer residence, situated on the Rideau River. When the plaintiff’s horse had reached a point some distance north of the most northerly track, and which was about fifty feet to the north of the main line of the defendant’s railway, the plaintiff and his coachman, who was driving, became aware of an engine approaching on the main line. The horses were immediately turned and headed north on Elgin Street, but, owing, as the plaintiff alleges, to the fright occasioned by the appearance of the locomotive and the noise it made in crossing Elgin Street, they became restive; one of the horses reared violently, and, in so doing, broke the poll strap attached to his collar and fell, tearing away the other horse’s bridle. The driver then, in consequence of the harness being thus rendered useless for the purpose, could not guide or rein in the team, and the horses ran away, upsetting and breaking the carriage and harness and injuring the plaintiff and his son, who was riding in the carriage with the plaintiff.
The action was tried before Mr. Justice MacMahon and a jury to whom certain questions were submitted, which with their answers thereto are as follows:—
1. At what distance from Elgin street crossing did No. 1 engine start westward?—A. About 300 feet.
2. When the engine started westward was the bell rung, and did it continue ringing at short intervals until it crossed Elgin street?—A. It did not ring.
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3. If you find the bell was not rung as mentioned in question No. 2, did the neglect to so ring the bell cause the driver of Dr. Henderson’s carriage to do any act which he would not otherwise have done?—A. Yes.
4. What was such act?—A. Drove forward.
Q. And did it contribute to the accident?—A. Yes.
5. Was engine No. 1 when going west, and before it reached Elgin street running faster than six miles an hour? If so, how fast?—A. Believe train was going over six miles an hour; not competent to say how much faster.
6. Did the flagman give warning to the plaintiff’s driver not to cross?—A. Do not believe that flagman raised his hand.
7. Did the horses rear or bolt before or after the engine crossed Elgin street?—A. After.
8. What caused the horses to rear and bolt?—A. Fright from engine.
9. Was the pole-strap reasonably fixed for the purpose for which it was used?—A. Yes.
10. Is the injury of which Dr. Henderson complains wholly due to mental shock, or is it attributable partly to mental shock and partly to shock caused by a blow?—A. Partly from shock and blow.
At what do you assess the damages?
(a.) In respect of injury to horses, carriage, and harness?—A. $380.
(b.) In respect of personal injury resulting exclusively from mental shock, $600.
(c.) In respect of shock caused by blows?—$400.
On these findings judgment was entered for the plaintiff with $780 damages, the learned judge refusing to allow the $600 assessed by the jury for mental shock. The company appealed, and plaintiff took a cross-appeal for the $600. Both appeals were dis-
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missed by the Court of Appeal, and the company then appealed to this court.
Chrysler Q.C. and Bethune for the appellant. It was a shunting engine that passed the crossing when the plaintiff was injured, and sec. 253 of the Railway Act requiring the bell to be rung or whistle sounded does not apply in such case. Hollinger v. Canadian Pacific Railway Co.; Bennett v. Grand Trunk Railway Co.
Wallace, Nesbitt and Macfarlane for the respondent.
THE CHIEF JUSTICE (Oral).—We think it is not desirable to reserve judgment in this case, as we are all satisfied with the decision of the Court of Appeal which affirms the judgment of Mr. Justice MacMahon at the trial in favour of the plaintiff. It was indeed the only judgment that could have been entered upon the evidence given.
As regards section 256 of the Railway Act, I consider that that section applies not only to the general traffic, but also to shunting and other temporary movements in connection with the running of trains. This section provides that a bell should be rung or a whistle sounded at at least eighty rods distance from a crossing. It is a very great indulgence to railway companies to be allowed to run their trains through streets on the level subject only to the requirements of giving warning on approaching the crossings.
The jury found that this section was not complied with, and that the plaintiff’s coachman was induced to go ahead by the non-ringing of the bell, and that contributed to the accident, and when the horses became terrified by the sound of the approaching engine, a part of the harness broke, and they became unmanageable. I think that is quite sufficient to
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make the company liable under the statute, without any finding of common law negligence. The fact that the signalman did not raise his hand was not the cause of the accident, and I think the jury evidently meant that he did not make any signal, and that they intended to find, as in the answer to the other question, that that fact also contributed to the accident.
Further, I think it right to say that on this evidence we should be justified in holding that there was common law negligence as in the case of The St. Lawrence & Ottawa Railway Co. v. Lett.
I think there was no case made out for a new trial, and the appeal must be dismissed with costs.
TASCHEREAU J.—I concur in what His Lordship has said. I think it would be absurd to hold that section 256 of the Railway Act does not apply to a shunting engine approaching a crossing as well as to the regular trains.
GWYNNE J.—I do not wish to express an opinion as to whether or not section 256 applies in the case of shunting. I consider it unnecessary to do so, but on the case found by the jury I am of opinion that if ringing the bell would prevent an accident to a person crossing the highway there is an obligation at common law to ring it, and it is negligence not to do so. It is for the jury to say whether or not the neglect to ring the bell contributed to the accident, and they have done so.
KING J.—also concurred.
GIROUARD J.—I think the appeal should be dismissed for the reasons given by the Chief Justice.
Appeal dismissed with costs.
Solicitors for the appellant: Chrysler & Bethune.
Solicitor for the respondent: A. Macfarlane.
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