Supreme Court of Canada
Can. Pac. Ry. Co. v. Ouellette, [1924] S.C.R. 426
Date: 1924-06-08
The Canadian Pacific Railway Company (Defendant) Appellant;
and
Aristide Ouellette (Plaintiff) Respondent.
1924: May 20, 21; 1924: June 8.
Present: Idington, Duff, Anglin, Mignault and Malouin JJ.
ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Railway—Negligence—Level crossing—Engine with tender leading—Section 310 of the Dominion Railway Act—Interpretation—Dominion Railway Act, R.S.C. (1006) c. 37, s. 2, ss. 25, 34, s. 276; 9-10 Geo. V, c. 68, s. 310.
A train, drawn by a locomotive with tender attached and moving reversely, so that the tender is foremost, is not a train "not headed by an engine" within the purview of section 310 of the Dominion Railway Act as enacted by 9-10 Geo. V, c. 68. Idington and Malouin JJ. dissenting.
APPEAL from the decision of the Court of King's Bench, appeal side, province of Quebec, affirming the judgment of the trial judge with a jury and maintaining the respondent's action.
The respondent sued the appellant company claiming compensation in respect of the death of his two minor sons, who were struck down and killed on the company's track at a level crossing. The "train" of the company consisted of two locomotives, each with its tender attached, moving reversely, i.e., with the tenders leading. The negligence affirmed by the jury's verdict was the failure of the railway company to have a person on the leading tender to warn people about to cross the track of the approach of the train in conformity with section 310 of the Dominion Railway Act.
Tilley K.C. and Foran K.C. for the appellant.
Laflamme K.C. and Lemieux K.C. for the respondent.
Idington J. (dissenting).—The appellant had a train consisting of a tender at its head and an engine next and a tender and engine behind them, running at a rate of at least ten miles an hour, and possibly fifteen miles or more an
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hour, across St. Florent street in the city of Hull, where there was a level crossing not adequately protected by gates or otherwise, and no person stationed on that tender heading the train, to warn persons standing on, or crossing, or about to cross, the track at said level crossing.
That train struck, at said level crossing, a truck auto driven by one Bertrand (and on which two boys sons of the respondent were riding), when the said driver was attempting to cross the said railway track.
The said sons of the respondent were killed thereby and hence this action to recover damages.
Many grounds therefor were taken by respondent, and amongst them that the appellant had not duly complied with the requirements of section 310, subsection (1) of the Railway Act of 1919, which reads as follows:—
Section 310 (1): Whenever in any city, town or village any train not headed by an engine is passing over or along a highway at rail level which is not adequately protected by gates or otherwise, the company shall station on that part of the train, which is then foremost, a person who shall warn persons standing on, or crossing, or about to cross the track of such railway.
The jury found in favour of respondent but that Bertrand was also to blame, and hence assessed the damages the respondent was entitled to as against the appellant alone, at $1,500, being for one-half of the total he had suffered.
And that verdict was rested upon the said subsection I have just quoted, in not having a man on the tender which was the head of the train.
The appellant appealed, from the learned judge's judgment entered pursuant to said verdict, to the King's Bench, on the appeal side, and that court, consisting of five judges, unanimously upheld said judgment.
The language used in said subsection, quoted above, seems to me most clear and explicit, and to have been correctly applied by the learned judges in appeal, and also by the learned trial judge.
The statute clearly requires where the train is not headed by an engine that under such circumstances as found existent in this case, the company shall station on that part of
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the train which is then foremost a person who shall warn persons standing on or crossing or about to cross the track of such railway.
"A train" is defined by subsection 34 of section 2 of said Railway Act, as follows:
includes any engine, locomotive or other rolling stock.
And "rolling stock" is defined by subsection 25 of said section 2 of said Railway Act, as follows:—
(25) Rolling stock means and includes any locomotive, engine, motor car, tender, snow-plough, flanger, and every description of car or of railway equipment designed for movement on its wheels, over or upon the rails or tracks of the company;
Yet we are gravely asked by counsel for appellant in face of such express language and definitions to hold that a "tender" is only part of an engine although common knowledge, as well as this express language, tells us they are separate.
And a remarkable feature of the contention is that the plain meaning of the words are to be given another meaning because some words used in an old Act, were dropped out, when such changes as made were obviously part of a revision of the entire legislation relative to railways, and intended to make clearer the law and improve it in many respects by eliminating useless verbiage.
When parties are driven to such arguments and no better, it makes it rather hard, I most respectfully submit, to understand why leave to appeal was granted.
That evidently was given because of it being urged that the judgment would impose serious loss upon all railways in Canada.
Just imagine a serious loss arising from being forced to carry the tender in its proper place instead of putting it in the reverse order of things!
I prefer that interpretation of any statute which will tend to avoid the sacrifice of human life, even if some careless employee is put to a little trouble.
I am of the opinion that this appeal should be dismissed with costs.
Duff J.—The sole question of substance on this appeal concerns the construction of sec. 310 of the Dominion Railway Act, 9-10 Geo. V, c. 68. The respondent sued the
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appellant company, claiming compensation under article 1056 of the Civil Code in respect to the death of his two minor sons, who were struck down and killed on the company's railway track at the crossing of St. Florent street, Hull, in August, 1922. The victims of the accident were crossing the track in an auto truck when a "train," so-called, of the company ran into it. The "train" consisted of two locomotives, each with its tender attached, moving reversely, i.e., with the tenders leading. The negligence affirmed by the jury's verdict, which is the foundation of the respondent's judgment, was the failure of the company to have a person on the leading tender to warn people about to cross the track of the approach of the train.
Section 310 is in these words:—
Whenever in any city, town or village, any train not headed by an engine is passing over or along a highway at rail level which is not adequately protected by gates or otherwise, the company shall station on that part of the train, which is then foremost, a person who shall warn passengers standing on, or crossing, or about to cross any track of such railway.
By subsection (2) of section 34 of the statute, "train" includes any engine, locomotive or any rolling stock. The word "train" is broad enough to comprehend in its ordinary meaning any series of vehicles attached together moving upon a railway track, and prima facie would apply to the two locomotives and tenders with which we are concerned. But the point in controversy turns upon the meaning to be ascribed to the word's "engine" and "train" in the context in which they are found in this section. Where the engine is moving reversely, so that the leading vehicle is the tender, can it be affirmed within the meaning of that section that the train "is not headed by an engine," and that the tender is a vehicle falling within the description, "that part of the train which is then foremost"? The section obviously distinguishes between the engine and the "train," i.e., between the engine and the other vehicles comprising the "train." It does not in terms distinguish between the engine and the tender, and I am inclined to think that in this section, construed without extraneous aid, "engine" comprises both locomotive and tender, i.e., the locomotive and what ordinarily is an inseparable adjunct of the locomotive. We are, however, entitled, when confronted with a provision of that kind, which is
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capable of more than one necessarily exclusive construction, to examine the history of the legislation and to read the enactment to be interpreted by the light of that history.
Section 310 of the present Railway Act was substituted for sec. 276, c. 37, R.S.C., 1906, which was in these words:—
Whenever in any city, town or village, any train is passing over or along a highway rail level, and is not headed by an engine moving forward in the ordinary manner, the company shall station on that part of the train, or of the tender, if that is in front, which is then foremost, a person who shall warn persons standing on, or crossing, or about to cross the track of such railway.
The italicized phrases are those which have been omitted in the consolidation now in force. The omission of these phrases affords in my judgment conclusive evidence as to the intention of the legislator. The section as it stood in the Revised Statutes applied in all cases in which the engine leading the train was not
moving forward in the ordinary manner.
This qualification is struck out. "Not headed by an engine," in the substituted section, is obviously intended to take effect according to its ordinary meaning, i.e., where the leading vehicle is not an engine or part of an engine. The omission of the second phrase indicates very clearly the absence of any intention to distinguish, in the substituted section, between the engine and the tender.
The point may, perhaps, be more clearly put in this way. It is quite obvious that in sec. 276 of c. 37 of the Revised Statutes, the distinction was drawn between the vehicles forming "the train" and the engine (i.e., the engine as composed of the locomotive and tender) leading the "train." In that section the tender is treated as forming part of the engine, and not as part of the "train"; and the word "engine" is used as in itself including both locomotive and tender, or applying to any such combination, whether moving reversely or "forward in the ordinary manner." These words are reproduced ipsissimis verbis in the consolidation. The inference seems plain that the intention was by the substituted section to give effect to these words of the existing section according to the construction
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they bore before the deletion of the italicized phrases.
The appeal should be allowed and the action dismissed with costs.
Anglin J.—The sole purpose of this appeal, for which special leave was granted by the Court of King's Bench on the terms that
no costs would be asked against the respondent,
is to determine whether a train drawn by a locomotive with tender attached and moving reversely, so that the tender is foremost, is or is not a train "not headed by an engine" within the purview of s. 310 of the Dominion Railway Act, 9 & 10 Geo. V, c. 68. I had occasion to consider this question in Grand Trunk Pacific Ry Co. v. Earl, and then reached the conclusion that under such circumstances, for the purposes of s. 310, the train should be regarded as headed by an engine.
In deference to the contrary view taken in the present case by the Court of King's Bench, I have carefully reconsidered the question in the light of the argument addressed to us. I retain the opinion which I held in Earl's Case (1).
In common parlance a locomotive with tender attached is spoken of as an engine. Parliament recognized that fact when it distinguished between the engine and its tender in the corresponding section of the former Railway Act, R.S.C., c. 37, s. 276. Such a case as that now before us would have fallen within the explicit terms of that provision, which applied whenever the train was "not headed by an engine moving in the ordinary manner" and prescribed that a person should be stationed on "the tender if that is in front." Parliament has now removed from the section the italicized words. We must attribute to it the intention thereby to effectuate the change in the law which such an alteration in the language fairly imports. Probably because it was thought that the engineer and fireman on an engine at the head of a train (or running alone) would have sufficient means of observing persons standing on, or crossing, or about to cross, the railway
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tracks, and would be able to give sufficient warning of the approaching train whether such engine was
moving forward in the ordinary manner
or moving reversely, Parliament appears to have thought that the requirement that a special person be stationed on the foremost part of the train to give warning should be restricted to the case where the engine is preceded by cars. But, whatever the motive which actuated it, the change made in the legislation would seem to render it clear that the section no longer applies to the case of an engine (including its tender) moving reversely if it be travelling alone or be at the head of a train of cars. Neither of these is the case of a train "not headed by an engine."
Other derelictions of duty charged against the defendants were impliedly negatived by the jury's finding that their negligence consisted in "not having man on back of tender." Andreas v. Canadian Pacific Ry. Co.. The learned trial judge had charged that this omission would be a breach of s. 310 and would entail liability. It was not suggested that a duty to have a man stationed on the back of the tender existed at common law.
Under these circumstances the appeal must be allowed and the action dismissed.
Mignault J.—The two children of the respondent were killed when a motor truck in which they were riding came in collision at a highway crossing in Hull, Que., with two engines of 'the appellant company coupled together and proceeding reversely, that is to say tender first. There were no cars, for the engines were backing in the direction of the Union railway station in Ottawa, where they were to take their trains. Several faults were charged against the appellant, but the only one found by the jury was
for not having man on back of tender,
all other faults being thus negatived.
The learned trial judge read to the jury subsection 1 of section 310 of the Railway Act and then directed them as follows:—
Now, the whole question there is whether these two engines and tender constitute a train. The statutory enactment has been changed from time to time. "Or of the tender if that is in front"—those words were used after the word "train." They appear to have been omitted, but in
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looking at the interpretation clause of what a train means by the Act it includes any engine or any rolling stock by subsection 34 of section 2. I may be wrong in my interpretation of the law and if I am the Court of Appeal will set me right, but I am of opinion, and I so instruct you, that it was a statutory duty of the railway company to conform to the requirements of section 310, subsection 1.
Taking the finding of the jury in connection with the instructions of the learned judge, it is clear that the fault found was failure to comply with section 310 in not stationing some one on the back of the tender to warn persons standing on, or crossing, or about to cross the track of the railway. In Grand Trunk Pacific Ry. Co. v. Earl, I expressed the opinion that section 310 does not apply to the case of a train headed by an engine moving tender first. Having given my best consideration to the judgments of the learned judges of the Court of King's Bench as well as to the arguments of counsel, I see no reason to change my view.
The contention of the respondent is that these two engines moving reversely were a "train" within the meaning of the Railway Act, and the interpretation clause of the Act is relied on as so defining the word "train." It is obvious however that the context of section 310 must be considered, for it requires the stationing of a look-out man only when the "train" is not headed by an engine. There is here a clear distinction between the train and the engine.
That this provision does not apply when the train is headed by an engine, although the engine is moving tender first, is shown by comparing section 276 of the former Railway Act (R.S.C., c. 37) with section 310 of the Railway Act of 1919 (9-10 Geo. V, c. 68). I will cite the two provisions in juxtaposition.
R.S.C., c. 37, sec. 276:—
Whenever in any city, town or village, any train is passing over or along a highway at rail level, and is not headed by an engine moving forward in the ordinary manner, the company shall station on that part of the train, or of the tender if that is in front, which is then foremost, a person who shall warn persons standing on, or crossing, or about to cross the track of such railway.
9-10 Geo. V, c. 68, sec. 310, subsec. 1:—
Whenever in any city, town or village, any train not headed by an engine is passing over or along a highway at rail level which is not ade-
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quately protected by gates or otherwise, the company shall station on that part of the train, which is then foremost, a person who shall warn persons standing on, or crossing, or about to cross the track of such railway.
It will be seen at a glance that in re-enacting this provision in 1919, Parliament struck out the words
moving forward in the ordinary manner (and) or of the tender if that is in front.
Its obvious intention was to effect a change in the law as it stood under the old Act, and since the re-enactment it is only when a train not headed by an engine is moving over or along a highway not adequately protected by gates or otherwise, in a city, town or village, that a lookout man must be placed on that part of the train which is then foremost. Here the train, if it can be so called, was headed by an engine and section 310, subsection 1, does not apply.
There is no suggestion in this case that it was negligence at common law not to have placed a man on the tender to warn persons crossing the railway. The verdict must stand or fall on the statutory fault found by the jury, to wit, non-compliance with section 310. If the section did not apply, this statutory fault did not exist. The appeal must therefore be allowed and the action dismissed.
As to costs, the condition of the special leave to appeal obtained by the appellant from the Court of King's Bench, was that
on the appeal of appellant to the Supreme Court, no costs would be asked against the respondent.
The appellant's main interest was to obtain from this court pronouncement on a very important question of railway law, and for that reason its factum does not ask for costs against the respondent. Under these circumstances, I would grant no costs to the appellant either here or in the two courts below.
Malouin J. (dissenting):—La decision dans la présente cause depend de l'interprétation à donner à l'article 310 de la loi des chemins de fer du Canada, 9 & 10 Geo. V., c. 68, qui se lit comme suit:
310 (1). Chaque fois que, dans une cité, une ville ou un village, un train n'ayant pas en tête une locomotive traverse ou longe une voie publique à niveau et qui n'est pas suffisamment protégé par des barrières ou
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autrement, la compagnie doit avoir sur la partie du train formant ainsi la tête du convoi, quelqu'un pour avertir les personnes qui se tiendraient sur la voie du chemin de fer, la traverseraient ou seraient sur le point de la traverser.
Le juge qui a présidé au procès a dit dans son adresse au jury que la défenderesse, pour se conformer à cet article de la loi, aurait dû placer en avant du train une vigie pour prévenir de son approche les piétons qui traverseraient la voie, vu qu'il n'y avait pas en tête du train une locomotive.
Le train qui a causé l'accident se composait de deux locomotives ayant en tête un tender.
La question à décider est celle de savoir si le tender fait partie de la locomotive ou s'il est un wagon distinct.
La loi désigne le tender comme un wagon séparé et Ténu-mère au nombre des voitures qui composent le "rolling stock". Les dictionnaires nous disent que c'est un wagon qui suit la locomotive et qui contient l'eau et le charbon. Il me paraît donc certain que la locomotive et le tender sont deux choses distinctes.
La Cour du Banc du Roi a adopté la manière de voir du juge de première instance et a confirmé le jugement.
L'appelante devant cette cour prétend que l'appellation locomotive dans l'article 310 du statut comprend la locomotive et le tender et que partant l'appelante n'était pas tenue de placer une vigie en avant de son train.
Je ne puis accepter cette manière de voir. Le statut décrète que quand un train n'a pas en tête une locomotive, une vigie doit être placée en avant du train pour traverser un chemin public afin d'avertir de son approche les personnes qui le traversent.
Le législateur est présumé avoir voulu dire ce qu'il exprime et le juge ne peut chercher en dehors du texte de la loi son intention quand le texte est clair et ne prête à aucun doute.
Je renverrais l'appel avec dépens.
Appeal allowed.
Solicitor for the appellant: T. P. Foran.
Solicitor for the respondent: Auguste Lemieux.
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