Supreme Court of Canada
Maritime Coal, Railway and Power Co. v. Herdman, (1919) 59 S.C.R. 127
Date: 1919-05-06
The Maritime Coal, Railway and Power Company (Defendants). Appellants;
and
Wilma Pearl Herdman, Administratrix of The Estate of William Walker Herdman (Plaintiff). Respondent.
1919: March. 14; 1919: May 6.
Present: Sir Louis Davies C.J. and Idington, Anglin, Brodeur and Mignault JJ.
ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA.
Negligence—Railway Company—Trespasser—Licencee—Penalty for trespass—Nova Scotia Railway Act (R.S.N.S. [1900] c. 99, s. 264).
By sec. 264 of the "Nova Scotia Railway Act" (R.S.N.S., [1900] ch. 99), every person not connected with the railway who walks upon a railway track is liable to a penalty. H. was killed while walking along a track on a stormy night in winter and on the trial of an action by his widow the jury found the railway company negligent in not having lights and having a defective whistle and that the public had, to the knowledge of the company, habitually travelled on the track at the place in question. They refused to find that running the engine without lights and without sounding the whistle at this place was a reckless disregard of human life but considered it careless.
Held, Davies C.J. and Anglin J. dissenting, that H. was a trespasser on the right of way; that the only duty owed him by the company was not to run him down knowingly and recklessly which was not done and the jury so found; and that the company was, therefore, not liable.
Per Davies C.J. and Anglin J. dissenting. Deceased was a licencee being on the track by permission and consent of the company which owed him the duty of not increasing the ordinary and normal risks which he would incur as such licencee and the negligence of the company added to those risks made it liable.
APPEAL from a decision of the Supreme Court of Nova Scotia, affirming the verdict at the trial in favour of the plaintiff.
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The facts are sufficiently stated in the above head-note.
Jenks K.C. and A. G. Mackenzie K.C. for the appellants. Deceased was a trespasser and the company owed him no duty but that of not wilfully injuring him: Grand Trunk Railway Co. v. Barnett,.
Frequent user of the track by the public does not necessarily imply licence to use it: Grand Trunk Railway Co. v. Anderson .
Milner K.C. and Hanway for the respondent, referred to The King v. Broad, Lowery v. Walker, and Davis v. Chicago and North Western Railway Co..
Jenks K.C. and A. G. Mackenzie K.C. for the appellants.
Milner K.C. and Hanway for the responden.
The Chief Justice (dissenting)—This is an appeal from the judgment of the Supreme Court of Nova Scotia affirming the judgment of the trial judge in plaintiff's favour for the damages found by the jury.
The action is one brought under the "Fatal Injuries Act" of Nova Scotia by the administratrix of the estate of the late Dr. Herdman for the benefit of herself as widow of the deceased and his infant daughter Helen, for damages caused by the negligence of the defendant company and its employees in the operation of one of its trains over the company's railway between River Hebert and Strathcona, two villages along the line of railway about three-quarters of a mile apart, on the 10th of February, 1917, whereby the said Dr. Herdman was killed.
The evidence shewed that the public generally in that neighbourhood had, for a period of from twenty
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to twenty-five years before the accident, habitually walked along the railway track between the said two villages and that this use of the railway by the public was well known to the defendant company's officials and employees. The company never took any steps to interfere with such public user of the road and no prosecution was ever brought against any one for such user under the provisions of the Nova Scotia "Railway Act" which, in its 264th section, provided as follows:—
264. Every person, not connected with the railway, or employed by the company, who walks along the track thereof, except where the same is laid across or along a highway, is liable on summary conviction to a penalty not exceeding ten dollars.
This provision of the Act was virtually a dead letter so far as this section of this railway was concerned.
The undisputed facts as I gather them were that the deceased was killed on the evening of the 10th day of February, 1917. An engine and tender had left Joggins Mines during the afternoon helping a heavily loaded train out beyond Strathcona. The engine and tender took a side track to permit the loaded train to go by and then backed to Joggins Mines. The whistle was out of order on the return trip and could not be used. Darkness had set in. There were no lights on either the engine or tender. Snow was falling fast and the wind was high and blowing in the direction from Joggins Mines to Strathcona. The fireman gave evidence that the frost on the window prevented him seeing; that he didn't see anything; that he could not see out. The driver gave evidence that he could not see and again that he could not see much, sometimes he could see the tender and sometimes he could not. The snow was resting on the ground unevenly so that in some places the rails were covered
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and in other places they were bare. It was on this return trip from Strathcona back to Joggins Mines that the deceased was overtaken by the defendant's engine and tender, and killed. The accident occurred between Strathcona and River Hebert. The deceased was a physician residing in the village of River Hebert. On the afternoon in question he had gone out to Strathcona on the loaded train before referred to, to make a professional call, and after making this call he was seen to return to the railroad and start towards River Hebert. He was not seen again alive.
The plaintiff contends that she is entitled to recover because of the habitual and unchecked use by the public of the railroad to the knowledge of, the company's servants and employees, and of the facts that the engine which ran down the deceased was not at the time of the accident equipped with either a whistle or with lights, and was running backwards, making it difficult, if not impossible, for the men in the engine cab to observe a man on the track owing to the obstruction caused by the tender and that owing to its defective whistle it had not given the usual signal at the railway crossing a short distance from the place of the accident to warn persons on the track.
In my opinion, the evidence in the case amply warranted the several findings of the jury.
The chief defence relied upon by the company was that the deceased in walking on the track as and when he did was, under the section of the statute quoted above, a trespasser to whom they did not owe any duty beyond that of not wilfully injuring him.
Apart altogether from the statute I do not entertain any doubt whatever of the liability of the company.
The findings of the jury supported, in my opinion, by ample evidence substantially were that the absence
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of lights and the defective whistle were the proximate cause of the accident which the deceased, though careless, could not have avoided; that the public habitually travelled along the defendant's railway at the place in question, of which fact the company had notice but never interfered to stop or prevent; that the deceased had no reason to believe an engine would overtake him without blowing a whistle at Pugsley's crossing, and without carrying lights, and that the absence of the whistle and the lights prevented deceased from knowing the engine was coming along; that such an engine without lights and not sounding a whistle at Pugsley's crossing was more likely to kill a foot passenger at the point where the deceased was killed than an engine with lights which sounded a whistle at Pugsley's crossing, and that the running of such an engine under the circumstances was a careless but not a reckless disregard of human life.
Under these findings upon which I think the case must be determined it seems to me clear that the deceased was not a mere trespasser on the track, but that he was, at the time he was killed, there by the tacit permission and consent of the company and at the lowest was a bare licencee to whom, however, they owed a duty not, indeed, of the same character as that which they owed to a passenger on their train but still a duty clear and defined, namely, not to increase the normal or ordinary risks which the licensee would" incur when exercising the permission or licence granted to him. In the case of Gallagher v. Humphrey, Cockburn C.J. in delivering the judgment of a very strong court, stated the law to be as follows:—
I doubt whether on the pleadings and this rule it is competent to enter into the question of negligence, and whether the whole matter
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does not turn upon the question whether permission was or was not given to the plaintiff to pass along the way. But I should be sorry to decide this case upon that narrow ground. I quite agree that a person who merely gives permission to pass and repass along his close is not bound to do more than allow the enjoyment of such permissive right under the circumstances in which the way exists; that he is not bound, for instance, if the way passes along the side of a dangerous ditch or along the edge of a precipice to fence off the ditch or precipice. The grantee must use the permission as the thing exists. It is a different question, however, where negligence on the part of the person granting the permission is superadded. It cannot be that, having granted permission to use a way subject to existing dangers, he is to be allowed to do any further act to endanger the safety of the person using the way. The plaintiff took the permission to use the way subject to a certain amount of risk and danger, but the case assumes a different aspect when the negligence of the defendant—for the negligence of his servants is his—is added to that risk and danger.
I have not found any case where this statement of the law is either challenged or impugned.
In a later case of Thatcher v. The Great Western Rly. Co., Lord Esher M.R. said
that if a person was on the premises of another with that other's consent, the latter had a duty to take reasonable care not to act in such a way as to cause personal injury to the former. It was the business of a railway company to carry as passengers persons who came to their stations for the purpose of travelling to various destinations. It was a matter of every day occurrence that, when persons intending to be passengers came to railway stations, their friends came with them to see them off. The company knew that it was the practice of passengers' friends so to come to their stations, and they permitted them to come. They knew that whenever two persons came to the station it might well be that one of them was not intending to travel, but merely came to see the other off. What duty had the railway company to those persons? No doubt in strict logic they had not the same amount of duty to them as they had to persons who paid them money in consideration of being carried as passengers. But, so far as regarded the taking of means for providing for personal safety, it was impossible to measure the difference between their duty to the one class of persons and their duty to the other. In short, it was their duty to take reasonable care with regard to both. The defendants, therefore, owed the plaintiff the duty to take reasonable care not to do anything to endanger his personal safety. Such duty had been recognized in Holmes v. North-Eastern Railway Co., and Watkins v. Great Western Railway Co..
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The case of Tough v. North British Railway Co., decided by the Court of Session, Scotland, in 1914, consisting of Lords Salvesen, Guthrie, Ormidale and Lord Justice Clerk, approves entirely of the judgment in Thatcher v. The Great Western Rly. Co., referred to above and decided that
a person who goes upon premises as a mere licencee is not there at his own risk if he suffers injury through the negligent act of the servants of the owner committed, in the course of their employment, after the licensee has entered the premises. (1).
The latest case on this branch of the appeal is that of Lowery v. Walker, decided by the House of Lords, reversing the decisions of the Divisional Court and also of the Court of Appeal.
The material facts in this case were that the defendant, who owned a savage horse which he knew to be dangerous to mankind, put it, without giving any warning, into a field of which he was the occupier and which he knew the public were in the habit of crossing without leave on the way to a railway station. The plaintiff in crossing that field was attacked, bitten and stamped on by the horse. The County Court judge found as a fact that the defendant was guilty of negligence in putting a horse which he knew to be ferocious in a field which he knew to be habitually crossed by the public and gave judgment accordingly.
The House of Lords, reversing the decisions of the Divisional Court and the Court of Appeal which had held the defendant occupier not liable, held that the effect of the learned judge's finding that the plaintiff appellant was in the field without express leave but with the permission of the defendant entitled the plaintiff to recover.
The Lord Chancellor, Lord Loreburn, says, at page 12:—
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I think the substance of the finding (of the trial judge) amounts to this, that the plaintiff was not proved to be in this field of right; that he was there as one of the public who habitually used the field to the knowledge of the defendant; that the defendant did not take steps to prevent that user; and in those circumstances it cannot be lawful that the defendant should with impunity allow a horse which he knew to be a savage and dangerous beast to be lodged in that field without giving any warning whatever, either to the plaintiff or to the public, of the dangerous character of the animal.
The other Law Lords all concurred expressing themselves substantially to the same effect as the Lord Chancellor, viz., that, although the plaintiff was not proved to be in the field as of right, he was one of the public who habitually used the field to the occupier's knowledge and without his having taken steps to prevent the user and in those circumstances was liable for the injuries inflicted on the plaintiff by the savage horse.
Applying to this case the principles on which Lowery v. Walker, was decided, I cannot see, leaving for the moment the question of the statute aside, how it is possible for the company in this case successfully to argue their non-liability for the death of the deceased doctor. Instead of a savage horse as in the Lowery Case, we have in this case as Mr. Justice Ritchie says in his judgment
an engine running on a windy stormy night, backwards, an extra trip, not a regular train, without lights and a defective (in fact, useless) whistle put on the track and set in motion.
The jury have found this constitutes negligence and that the deceased was prevented from knowing that the engine was coming by the absence of the whistle and lights.
If the jury had found that the running backwards under the circumstances of such an engine shewed a reckless disregard of human life, I cannot believe the company would not be held liable. The fact that they
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found it was only a careless disregard of human life, cannot, in my judgment, absolve the company from liability.
Dublin, Wicklow and Wexford Railway Co. v. Slattery, is in some aspects instructive on this appeal. For instance, on the question of notices having been put up forbidding persons to cross the line at a particular point, it was held that these notices having been continually disregarded by the public and the company's servants not having interfered to enforce their observance, the company could not in the case of an injury occurring to any one crossing the line at that point, set up the existence of the notices by way of answer to an action for damages for such injury.
The English text books on the subject are to the same effect as to the liability and obligations of the railway company to a licencee. See 21 Halsbury, sec. 660 and notes, and Salmon on Law of Torts, pp. 400 to 404.
The decisions of the courts in the United States, though of course not binding on us, are to the same effect as those English cases to which I have referred with respect to the rights of licencees or persons permitted to use lands or premises of an occupier or owner.
In the case of Davis v. Chicago and North West Ely. Co., it was held by the Supreme Court of Wisconsin, after citing amongst other authorities that of Gallagher v. Humphrey, and quoting Chief Justice Cockburn's judgment in that case with approval, that
where the right of way of a railway company has been in constant use by travellers on foot for more than 20 years, without objection from the company, it is for the jury to say whether the company acquiesced in such user. Such a user, while not establishing a public highway upon
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the company's right of way, would relieve the persons passing over the same from being treated as trespassers by the company. There is a clear distinction between the care which a railroad company is bound to exercise towards mere trespassers and towards those who are on its right of way by the licence of the company, and in case of a long and constant user of such way the company and its servants are charged with notice of it, and cannot neglect precautions to prevent danger to persons travelling thereon. Wilful injury is not the only ground of liability in such a case.
In Corrigan v. Union Sugar Refinery, Gray J. in delivering the judgment of the Supreme Court of that State, said:—
The material question is, whether the keg fell upon the plaintiff's head by reason of the negligence of the defendants' servants. If it did, then whether this was a public or a private way, and whether the plaintiff was passing over it in the exercise of a public right, or upon an express or implied invitation or inducement of the defendants, or by their mere permission, he was rightfully there, and may maintain this action. Even if he was there under a permission which they might at any time revoke and under circumstances which did not make them responsible for any defect in the existing condition of the way, they were still liable for any negligent act of themselves or their servants, which increased the danger of passing and in fact injured him.
See also to the same effect the judgment of the Court of Appeal, State of New York, Barry v. New York Central and Hudson River Railroad Co..
From all the cases I have referred to I find the law of England and of Scotland and of many of the United States of America is the same, namely, that while a mere licencee entering upon premises of the owner does so at his own risk with regard to all normal and ordinary risks which he may incur or be subject to on the premises, the licenser, owner or occupier remains liable to him for injuries caused to him by abnormal and extraordinary risks brought about or introduced through the negligence of the licenser or his servants.
Passing now from this branch of the case to the effect of the provision of the Nova Scotia Railway Act,
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sec. 264, before cited, it will be observed that the section only makes every person not connected with the railway or employed by the company who walks along the track thereof liable to a penalty not exceeding ten dollars.
The section does not intend or purport to deal with the rights or obligations of such person so offending to the company or with those of the company to such person.
Whether such person, being one of the general public, had express or implied authority from the company to walk upon the railway would not matter as affecting his liability for the penalty.
If sued for the penalty, proof of such express or limited authority would not be any defence. The section was passed as a matter of public policy and was not intended in any way to interfere with the rights or obligations of the parties to each other in the exercise of a permission by the company to walk on the track.
When the legislature intended to interfere with or take away such civil or private rights they said so in express terms. See sections 189 and 262(3), the former of which says—
189. The persons for whose use farm crossings are furnished, shall keep the gates at each side of the railway closed when not in use; and no person, any of whose cattle are killed by any train owing to the non-observance of this section, shall have any right of action against any company in respect to the same being killed.
and the latter of which reads as follows:—
262. If the cattle of any person, which are at large contrary to the provision of this section, are killed or injured by any train at such point of intersection, he shall not have any right of action against any company in respect to the same being so killed or injured.
The legislature, in the section we are interested in, merely imposed a penalty for walking on the track. It uses no language which can be construed as interfering with the relative legal rights of the offending
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person and the railway. It simply declares a public policy breach of which gave rise to a penalty.
While therefore, in my judgment, no railway could alter that policy or prevent the attached penalty from being enforced against any offender by any consent it might give, on the other hand, the section carefully abstained from interfering with the private or civil rights or obligations which might arise between the parties by reason of any person walking on the railway track with the permission of the railway.
The penalty for breach of the public policy was absolute whether the railway assented to the breach or not. The obligations of the railway to one to whom it gave permission so to walk were not interfered with or done away with. Could it for a moment be successfully contended that a wilful injury done to such a licencee from the railway, by its servants, was without remedy. I certainly think not and that such a result never was intended and equally so do I think it was not intended to take away the civil right from such licensee of suing for damages sustained by the negligence of the company in adding additional dangers and risks to those which the licensee assumed in accepting the licence and from which additional dangers and risks he suffered damage. The case of Davis v. North Western Railway Co., above cited by me on the other branch of the case, expressly determines that such a statute making it an offence to walk upon the track does not alter the rule. No authority was cited to us in support of the appellant's contention that the section imposing a penalty merely made a person violating it a trespasser and took from him civil rights which he otherwise would possess as licencee against the company giving him such licence.
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It seems to me, however, that the language used by the Judicial Committee in the case of Rex v. Broad,, is an authority to the contrary of appellant's contention. It was there held that sec. 191, sub-sec. 2 of the Public Works Act, 1908, of New Zealand, suspended during the period therein referred to the absolute right of the public to pass along a highway over a level crossing but left unaffected the right of those who did so pass to have reasonable care exercised by the railway authority in using the line. Lord Robson, who delivered their Lordships' judgment, says, at page 115:—
The language of the sub-section is amply satisfied by holding that on the specified approach of a train the public's absolute right to pass is suspended leaving unaffected the question of other rights if nevertheless persons do pass.
I adopt this language and think it peculiarly applicable to the penalty clause in question.
On the whole I would dismiss the appeal with costs.
Idjngton J.—This is an action by respondent, the widow and administratrix of the late Dr. Herdman, for damages arising from his death alleged to have been caused by the wrongful act or negligence of the appellant.
Deceased on returning from a professional visit to a patient attempted to do so by walking on the railway track of appellant instead of travelling by the common highway, and is found to have met his death by a locomotive and tender moving backward at the rate of about ten miles an hour and overtaking and knocking him down.
This occurred after dark in the evening in February, 1917, in the midst of a snowstorm described by
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some as "an awful storm" and by others as "blustery and very cold."
The locomotive and tender were returning from a short run taken to assist a train up a heavy grade of a mile or more to a station a few miles distant from River Hebert, the home town of deceased, and the station where this ancilliary engine was kept. The case was tried before Mr. Justice Drysdale with a jury, who answered ten questions submitted to them, and in answer to the eleventh assessed the damages at $6,000 for which judgment was entered; and that has been maintained by a majority of the Court of Appeal.
The first two questions and answers are as follows:—
1. Was the proximate cause of the accident that killed Dr. Herdman the negligence of the company? If so, state it. What was it? Yes, not having lights and a defective whistle.
2. Notwithstanding such negligence, could Dr. Herdman, by the exercise of reasonable care, have avoided the accident? We think the doctor was careless but could not have avoided the accident.
The accident did not take place at or so near to any crossing, at or approaching which there might have been involved the breach of a statutory duty to give warning.
The only statutory duty seems to have been, in that regard, to either ring a bell or whistle at certain distances from a highway crossing.
These obligations were fully discharged, as sworn to by the engine driver and fireman in charge, and there is no contradictory evidence on the point.
The whistle was in fact by reason of the frost, as I understand, out of service.
The sole ground of complaint in law, upon which the judgment rests, is that people in the neighbourhood had been habitually using the railway track, as so often happens, when inclined to take a shorter way in pursuit of any chance errand; and that no one had been
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prosecuted for doing so though the evil practice had been of such frequent occurrence that local officials of the appellant might be presumed to have had notice of its existence.
The railway track was fenced in, and not the slightest suggestion was made that it had been conceded as a public highway.
It is merely the toleration of such an evil practice, as pedestrians in many instances adopted, knowing, as some of them frankly said, they did it at their own risk, or, as many others said, without ever thinking of the consequences, that is relied on.
There was a railway bridge over the river in the vicinity, on which some of them crossed; and as an electric line was carried over it a large printed notice had been posted in 1915, by direction of appellant's superintendent, at each end of it, on which was inscribed a warning:—
Danger, keep off; this means you.
No other notices of warning against trespassing are in evidence.
The statute law of Nova Scotia contains a provision prohibiting the walking on any railway track, and providing for a penalty being imposed upon any such trespassers.
There is not in that province any provision, such as exists in some provinces, for punishing in like manner petty trespassers on other property.
It is thus clear that what the deceased, on the occasion in question did, and others had been doing, in the way of walking on the track was illegal and rendered him liable to a penalty.
The appellant relies, and I think rightly, upon the decision of this court in the case of the Grand Trunk
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Railway Co. v. Anderson, and other eases holding that there can be no recovery for damages suffered under such circumstances unless something else, than apparent herein, shewing gross negligence, or wilful misconduct on the part of those concerned on behalf of the railway company.
The learned trial Judge relied upon the case of Lowery v. Walker.
The charge of the learned trial judge to the jury was obviously influenced by his view of the said decision and hence some of the findings of the jury.
The Court of Appeal adopt the same view and think it is supported by other cases.
I cannot agree that there is anything in that or other cases relied upon, which in principle is applicable to the undisputed facts in this case, and that they did not present a case which should have been submitted to a jury.
I fail to see the resemblance between a railway company running its engine, in course of its daily and hourly exercise of right and discharge of duty, and that of a man who has in fact permitted a pathway to be used across his field with no dangerous animals therein, suddenly and without warning rendering the pathway highly dangerous by turning a vicious animal at large therein.
Even assuming all that is alleged to be true, as to the use by pedestrians of appellant's track, to the knowledge of its management, the risk has never been increased or use of the track for what it was built for changed in the slightest.
If the right of way had been out of use for a time and then suddenly and without warning put into
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active service, some analogy might be found in doing so to what the Lowery Case presents.
But in fact this engine was running just as it was accustomed to do about the same hour, if not daily, at least on an average every other day in the week.
The distance home for the deceased, where he was going, was shewn to be some three hundred feet longer by the railway than by the road.
The circumstances shew that he chose the railway track instead of the highway because the latter was deeply covered with snow and the railway track not so, because the cars and engines were running thereon and brushing aside or crushing down the snow.
It is not for the courts to impose a new mode of running a railway, or upon those doing so, a new code of regulations for the protection of trespassers.
There are cases such as in evidence in the well known Slattery Case, where the station arrangements were such as to mislead, or regulations at crossings such as in The King v. Broad, make the conflicting duties of those using the highway and those running the railway often the subject of anxious inquiry, and require a rigorous enforcement of statutory regulations, lest the unwary and accidental trespasser may be caught and a case to submit to a jury arise.
We had such a case in Garside v. Grand Trunk Railway Co. (not reported) a year or two ago in which I had no doubt the deceased was technically trespassing upon the unfenced land of the railway company, yet we maintained the right of action because of the neglect by those running an engine to observe the statutory duties of giving warning.
It was attempted there to shew that a bar across
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the highway served same as in the Broad Case, since reported, took away all right to cross and with it a remedy for killing the pedestrian.
Wherever there is a statutory duty imposed it must be observed. We have no right to create such a duty.
No obligations rested upon the appellant towards the protection of the deceased in the way of lights or whistles.
Of course its servants would have no right to run him down knowingly or recklessly, any more than the defendant in the case of Davies v. Mann, had a right to run down the donkey tethered in the highway, or many a like offender has done since.
There is nothing to bring this case within that line of cases. I think the appeal should be allowed and the action dismissed with costs throughout.
Anglin J. (dissenting) concurs with the Chief Justice.
Brodeur J.—I am of opinion that this appeal should be allowed with costs of this court and of the courts below for the reasons given by my brother Idington.
Mignault J.—This is a case of very considerable difficulty.
The respondent's husband, Dr. W. W. Herdman, who lived at River Hebert, was killed while walking on the track of the appellant company, on the evening of the 10th February, 1917, between the village of River Hebert and Strathcona, Nova Scotia. The appellant there operates a line of railway which crosses the river
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on a bridge and goes up by a rather steep grade toward Strathcona and then continues on to a place called Jubilee. On the afternoon in question a regular train left Joggins, the other side of River Hebert, a little after 4.30 p.m., and was hauled, on account of the grade, by two engines, the front one, an old engine, driven by Forrest, the engineer, with Landry as fireman. This front engine was used for getting the train up the grade and at Jubilee it usually returned backwards, tender first, to Joggins. Dr. Herdman, that afternoon, took the train at River Hebert to visit a patient at Strathcona, where he got out, made his visit and then telephoned at 6.30 p.m. to his wife that he would immediately return. The night was a cold and very stormy one, with some snow and a high wind blowing across the railway. Dr. Herdman wore a raccoon coat and started out pulling up his collar and pushing down his cap over his ears. Unfortunately he chose to return by the railway track, a short cut which, the evidence shews, was very commonly used by men, women and even children in preference to the road which Dr. Herdman could have taken but which probably on such a night would have been a difficult one for a pedestrian to travel on. Later in the evening Dr. Herdman's body was found between the rails a short distance from the railway bridge.
He was killed by Forrest's engine which was returning to Joggins from Jubilee, tender first and without any headlight or any light on the tender. Forrest started from Joggins about 6.15 p.m., and having got his engine under way, shut off the steam and ran down the grade at a moderate speed. His whistle had become disconnected before reaching Jubilee, and he was unable to repair it on account of the escaping steam before he started to return. He therefore could
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not whistle at Pugsley's crossing, just before Strathcona, but his fireman rang the bell more or less continuously, with however some interruption, the latter says, when he got down from his seat to feed his fire. Both Forrest and Landry say that the storm was so severe that they could not see out of the cab window on account of the frost, and they did not think any one would be on the tracks on such a night. They never saw the victim and did not know that he had been killed until his body was found.
The case was tried before Mr. Justice Drysdale and a jury, and the latter have found as follows:—
1. Was the proximate cause of the accident that killed Dr. Herdman the negligence of the company? If so, state it. What was it? Yes, not having lights and a defective whistle.
2. Notwithstanding such negligence, could Dr. Herdman by the exercise of reasonable care have avoided the accident? We think the doctor was careless but could not have avoided the accident.
3. Up to the time that Dr. Herdman was killed did the public habitually travel along the defendants' railroad between the villages of Strathcona and River Hebert? Yes.
4. If so, did the defendant company have notice of it? Yes.
5. Before Dr. Herdman was killed did the defendant company interfere with persons so travelling along the railway? No.
6. Had Dr. Herdman reason to believe that an engine would overtake him without blowing the whistle at Pugsley's crossing and without carrying lights? No.
7. Was Dr. Herdman prevented from knowing that the engine was coming by the absence of the whistle and lights? Yes.
8. Was an engine running without lights and not sounding a whistle at Pugsley's crossing, more likely to kill a foot passenger at the point where Dr. Herdman was killed than an engine with lights and sounding a whistle at Pugsley's crossing? Yes.
9. Was the running of the engine which killed Dr. Herdman, without lights and without sounding a whistle at Pugsley's crossing a reckless disregard of human life? No, but consider it careless.
10. What amount of damages do you find; and how much do you allow to the widow and how much to the daughter? $6,000, divided as follows: widow $2,500, daughter $3,500.
In accordance with this verdict judgment was entered against the appellant for $6,000.00, and on an appeal to the Supreme Court of Nova Scotia, this
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judgment was affirmed by a court consisting of Russell, Longley and Ritchie JJ. Mr. Justice Longley dissenting. The appellant now appeals to this court.
The jury having negatived contributory negligence on the part of Dr. Herdman—and I do not think that I should interfere with their finding, whatever doubts I might feel on this point in view of all the circumstances—the appellant can, in my opinion, succeed only if it shews, 1st, that Dr. Herdman was a trespasser on its line, and 2nd, that assuming he was a trespasser, it has discharged any duty it owed to him as such trespasser.
To answer the first question regard must be had to the facts found by the jury that up to the time that Dr. Herdman was killed the public habitually travelled along the appellant's railroad between the villages of Strathcona and River Hebert; that the appellant had notice of it and did not interfere with persons so travelling on the railway. Assuming these facts, was Dr. Herdman a trespasser?
Section 264 of chapter 99 of the R.S.N.S., enacts that
every person, not connected with the railway or employed by the company who walks along the track thereof, except where the same is laid across or along a highway, is liable on summary conviction to a penalty not exceeding ten dollars.
The courts below relied on the decision of the House of Lords in Lowery v. Walker, which in their opinion is not distinguishable from the present case. There the respondent, without giving any warning, put a savage horse which he knew to be dangerous to mankind, in a field of which he was the occupier and which he knew the public were in the habit of crossing without leave on their way to the railway station. The appellant in crossing the field was attacked, bitten
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and stamped on by the horse. The County Court judge found as a fact that the respondent was guilty of negligence in putting a horse which he knew to be ferocious into a field which he knew to be habitually crossed by the public, and gave judgment for the appellant. This judgment was reversed by the Divisional Court, and by the Court of Appeal, but the House of Lords set aside both these judgments, holding that the effect of the trial judge's finding being that the appellant was in the field without express leave but with the permission of the respondent, the appellant was entitled to recover.
In this case their Lordships construed the finding of fact of the trial judge as meaning that the appellant was in the respondent's field not as a trespasser but with the permission of the respondent, and they applied the law to this finding of fact.
The appellant cites another case, Grand Trunk Rly. Co. v. Barnett, where the respondent was undoubtedly a trespasser on the platform of a railway car where he was injured. The case was considered upon this basis by the Judicial Committee, and the respondent's action claiming damages for his injuries was dismissed. Lord Robson, speaking for the Privy Council, held that the obligation of the railway company was merely not to wilfully injure the respondent, that is to say
they were not entitled, unnecessarily and knowingly, to increase the normal risk by deliberately placing unexpected dangers in his way.
The real difficulty, to my mind, is the statute which I have cited, and I have not been able to convince myself that what the House of Lords decided in Lowery v. Walker, with respect to a field over which,
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according to the findings of the trial judge, as construed by the House of Lords, the owner or occupier permitted the public to pass, can be applied to a railway line where the law punishes with a fine
every person not connected with the railway or employed by the company who walks along the track thereof.
If mere passiveness of a railway company could be regarded as a defence against a criminal action for trespass, the statute, which undoubtedly was enacted for the protection of the public as well as of railway companies, would soon become a dead letter. Dr. Herdman chose to walk upon the track, as hundreds of people had done before him, probably because he was hurrying to attend a sick call, and his motive was no doubt a good one, but he did so at his own risk and was, in my opinion, a trespasser on the railway. On this point I think Lowery v. Walker, is clearly distinguishable from the present case and moreover their Lordships there proceeded upon a statement of facts found by the trial judge which, as construed by them, went further than the facts found in this case by the jury.
When the evidence as to this user by the public of the railway tracks is examined it is seen that two witnesses, Charles A. Smith and Stuart Rector, say they walked on the railway track at their own risk, one, Rufus S. Hibbard, supposed that in doing so he was a trespasser, and William McIsaac admits that he did not think he had any right to walk on the track. All these were witnesses for the plaintiff. Other witnesses never considered whether or not they had a right to thus use the railway, but did so because they saw others walking along the tracks. The railway was fenced in and a notice of warning was placed on the railway bridge. All this evidence shews a state of
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facts materially different from what was found in Lowery v. Walker.
The second question is, assuming that Dr. Herdman was a trespasser on the right of way, did the appellant discharge any duty it owed him not to injure him wilfully, according to the rule laid down by the Privy Council in Grand Trunk Railway Co. v. Barnett. In other words did it
unnecessarily and knowingly increase the normal risk by deliberately placing unexpected dangers in his way?
The findings of the jury do not justify an affirmative answer to this question, which would involve a reckless disregard of human life. The jury refused to find any such reckless disregard of human life and they would not go any further than to state that the running of the engine without lights and without sounding a whistle at Pugsley's crossing was careless. I therefore must answer this question in the negative.
The case is one where every sympathy may legitimately be felt for the victim of this accident, who, I think, was hurrying to attend to a sick call when he was unfortunately killed. But this sympathy would not justify me in making the appellant pay damages in a case where I am convinced no legal liability exists.
The appeal must therefore, in my opinion, be allowed and the plaintiff's action dismissed. The appellant is entitled to its costs here and in the courts below if it thinks fit to collect them from the respondent.
Appeal allowed with costs.
Solicitor for the appellants: John S. Smiley.
Solicitor for the respondent: Eugene T. Parker.
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