Supreme Court of Canada
Paskivski v. Canadian Pacific Ltd., [1976] 1 S.C.R. 687
Date: 1975-04-22
Steve Paskivski and Nick Paskivski (an infant suing by his next friend, Steve Paskivski) (Plaintiffs) Appellants;
and
Canadian Pacific Limited (formerly known as Canadian Pacific Railway Company), Wilfred Cook, Charles Marsden, William Pederson and Nestor Stanko (Defendants) Respondents;
and
Steve Paskivski and Mrs. Steve Paskivski (Third Parties) Appellants.
Canadian Pacific Limited (formerly known as Canadian Pacific Railway Company) (Defendant) Appellant by Cross-Appeal;
and
Steve Paskivski and Nick Paskivski (an infant suing by his next friend, Steve Paskivski) (Plaintiffs) Respondents by Cross-Appeal;
and
Steve Paskivski and Mrs. Steve Paskivski (Third Parties) Respondents by Cross-Appeal.
1974: May 29, 30; 1975: April 22.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION
Negligence—Level crossing accident—Child waiting at crossing while slowly moving freight train engaged in switching operations—Whether special circumstances requiring railway company to take additional precautions commensurate with foreseeable risk of harm.
In an action brought as a result of a level crossing accident, the Supreme Court of Alberta, Appellate Division, allowed an appeal by the respondent railway company from the trial judgment wherein the appellants were awarded general damages of $85,000 and special damages of $4,837.10 in respect of injuries suffered by
[Page 688]
the infant appellant. The infant appellant, then seven years of age, fell under the wheels of a slowly moving freight train engaged in switching operations, and suffered the loss of both of his legs below the knees.
Held: The appeal should be allowed and the judgment at trial restored, Judson, Pigeon and de Grandpré JJ. dissenting. The cross-appeal “with respect to the matter of costs” should be dismissed.
Per Laskin C.J. and Spence, Dickson and Beetz JJ.: A railway company’s duty of care to users of public crossings is limited to discharge of statutory obligations under the Railway Act, R.S.C. 1970, c. R-2, ss. 196-207, and compliance with orders of the Canadian Transport Commission—unless there are special or exceptional circumstances, in which event a common law duty of care will require additional precautions or safeguards.
In this case the trial judge could find the cumulative effect of the following circumstances to be “special circumstances” calling for extra precautions on the part of Canadian Pacific: (i) The crossing was a much used public crossing, not a private or little used crossing; (ii) It provided the only means of access from the predominately residential part of the community to the rest of the community; (iii) The crossing was used at regular times daily, in pursuance of a legal right, by children getting to and from school; (iv) The hour at which the train manoeuvre took place was the hour at which, to the knowledge of the railway, children would be returning to school; (v) There was not, to the knowledge of the railway, either a barrier or a flagman present; (vi) The road was icy and the day was cold and windy, compounding the danger; (vii) The train, a mile or more in length, passing within easy access in a seemingly endless procession of cars, would test the patience of children and afford them ample opportunity to indulge their natural propensity for play or mischief. Although a slowly moving train can be tempting and attractive to a child, the railway company took no precautions whatever to minimize the danger.
Per Martland and Ritchie JJ.: The trial judge found in the special circumstances of the case those exceptional circumstances which required a duty of care on the part of the respondent, beyond the mere observance of its statutory and regulatory obligations. He also found a breach of such duty, constituting negligence. On the
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facts, there was evidence sufficient to warrant those conclusions.
Per Judson, Pigeon and de Grandpré JJ., dissenting: This was not a case where the doctrine of exceptional or special circumstances should be applied.
The basic flaw in the judgment of the trial judge was that, on the facts, he concluded that there existed an allurement which put on the shoulders of the railway company an added burden. A train in normal use cannot be considered to be a concealed danger or trap.
In the absence of any special duty on the company to have an employee at the crossing at all times to warn the children away from the slowly moving train and in the absence of a defect in the crossing itself, the appeal should be dismissed.
[Grand Trunk Railway Co. of Canada v. McKay (1903), 34 S.C.R. 81; Anderson v. Canadian National Railways, [1944] O.R. 169; Lengyel v. Manitoba Power Commission (1957), 23 W.W.R. 497; Bouvier v. Fee, [1932] S.C.R. 118; Lake Erie and Detroit River Railway Co. v. Barclay (1900), 30 S.C.R. 360; Commissioner for Railways v. McDermott, [1967] 1 A.C. 169; Mitchell et al. v. Canadian National Railway Co., [1975] 1 S.C.R. 592, referred to.
APPEAL and CROSS-APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division, allowing an appeal from a judgment of Kirby J. Appeal allowed, Judson, Pigeon and de Grandpré JJ. dissenting. Cross-appeal dismissed.
L.D. MacLean, Q.C., and D.J. Evans, for the plaintiffs, appellants.
D.B. Hodges, for the defendants, respondents.
THE CHIEF JUSTICE—I agree with my brother Dickson and would allow the appeal and dismiss the cross-appeal for the reasons he has given. To them I would add, in emphasis of what he has said on the point, that I am unable to appreciate why railway companies, in the conduct of their transportation operations, are today entitled to the benefit of a special rule, more favourable to them, by
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which their common law liability is to be gauged. When all allowances are made for the force and legal effect of the rules and regulations of the regulatory agency, the Canadian Transport Commission, to which railway companies are subject, and when the question of their liability turns on the common law of negligence, as is the case here, they cannot claim to be judged by any different standards than those that apply to other persons or entities charged with liability for negligence.
The judgment of Martland and Ritchie JJ. was delivered by
MARTLAND J.—The facts which give rise to this appeal have been stated fully in the reasons of my brothers Dickson and de Grandpré. The claim is based upon an allegation of negligence on the part of the respondent in failing to exercise reasonable care, in connection with the operation of its freight train at Coleman, Alberta, for the protection of the safety of the infant appellant. The submission of the respondent is that, in the light of the judgment of this Court in Grand Trunk Railway Co. of Canada v. McKay, the respondent owed no duty, in respect of its train passing over the level crossing, other than compliance with the statutory requirements of the Railway Act, R.S.C. 1970, c. R-2, and any obligations imposed by the Board of Transport Commissioners.
The proposition stated in that case has, however, been qualified in subsequent decisions. Their effect is summarized in the judgment of Robertson C.J.O. in Anderson v. Canadian National Railways, in the passage at p. 177 cited by my brother Dickson. In brief, if the operations of the railway are carried on in such a way, or are of such a character that the public using the crossing is exposed to exceptional danger, or if there are exceptional circumstances that render the pre-
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scribed precautions ineffective or insufficient, the railway may be held to be negligent for failure to adopt other precautions to protect the public.
The circumstances in the present case are unusual. The respondent’s freight train, consisting of 87 freight cars and 4 engines, passed, at a slow rate of speed, across the level crossing thereby blocking, for a considerable length of time, the route to school, along the highway, of a large number of children. The operation was conducted, as it had been conducted previously as an almost daily practice, at a time of day when, to the knowledge of the respondent’s employees, a large number of children would be returning to school and would thereby be stopped, adjacent to the tracks. No steps of any kind were taken by the respondent to see that the children did not approach too close to the moving cars.
The trial judge referred to the allurement to children of the moving cars, and referred to the judgment of this Court in Bouvier v. Fee. The reference to allurement was critized in the Court of Appeal on the ground that the doctrine of allurement was relevant only in determining the status of a child as a trespasser or a licensee in a suit against an occupier of land, which the respondent in this case was not. With respect, I do not think that the trial judge’s reference to allurement was made in that context. Bouvier v. Fee was not dealing with an occupier’s liability. He regarded the allurement of the slowly moving freight cars to young children as being a factor affecting the scope of the duty of the respondent to the children who, it knew, would be present at the crossing when its freight train passed by.
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The trial judge found, in the special circumstances which I have outlined and which are fully set out in the reasons of my brother Dickson, those exceptional circumstances which required a duty of care on the part of the respondent, beyond the mere observance of its statutory and regulatory obligations. He also found a breach of such duty, constituting negligence. In my opinion, on the facts of this case, there was evidence sufficient to warrant those conclusions.
I would dispose of the appeal and the cross-appeal in the manner proposed by my brother Dickson.
The judgment of Judson, Pigeon and de Grandpré JJ. was delivered by
DE GRANDPRÉ J. (dissenting)—This appeal raises the question of the liability of a railway company for an accident at a railway crossing under the doctrine of exceptional or special circumstances where admittedly there has been no breach of statutory duty on its part.
The facts are recited at length in the reasons of my brother Dickson, as well as in the judgment of the Court of Appeal, so that it will be sufficient for me to mention here only the highlights thereof:
(1) the injured infant was seven years of age and there is a finding by the trial judge that he was not old enough considering his apparent “below normal intelligence” to have been capable of contributory negligence;
(2) the railway crossing is the only access to and from a community of some 350 people;
(3) the accident took place when a lengthy freight train, in order to clear the main line, was switched onto a siding; the same type of operation was carried out practically on a daily basis around one o’clock in the afternoon, at a
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time when some 100 children were going to school;
(4) the injured child was standing close to the slowly moving train and in the words of the trial judge, was “touching it or attempting to touch it, and as a result (fell) underneath the wheels”;
(5) in the minutes which preceded the accident, young Paskivski had been warned twice, once by a retired section hand and a second time by a school girl;
(6) Dr. Thompson, a psychiatrist, called by plaintiff, stated that a verbal warning would not be too effective on a child of six or seven years of age;
(7) although the crossing had been in existence for a considerable number of years, no evidence of any other accident was adduced by plaintiff.
There is no suggestion in the judgment of the trial Court that the accident was due to the slipperiness or otherwise bad condition of the crossing. The decisions of the Privy Council in Commissioner for Railways v. McDermott and of our Court in Mitchell et al. v. Canadian National Railway Co. have therefore no application. Indeed, the statement of claim refers only to the fascination and allurement, created by the “clicking and clacking” of the wheels over the iron rails, attracting the child closer to the moving cars with the result that “he or his clothing came in contact with a moving box car of the said train and he was swept under the wheels of the same”.
On these facts, the trial judge came to the conclusion that the railway company was negligent for its failure “to take any special precautions to meet the particular circumstances of this crossing”. The Court of Appeal unanimously reversed the trial Court. In his learned and very carefully written reasons, Clement J.A. reviews the facts and the law and comes to the conclusion that this is not a case where the doctrine of exceptional or special circumstances should receive its applica-
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tion. With respect, I am in agreement with that conclusion.
Such a doctrine must be applied with great care. To the authorities quoted by Clement J.A. on this point, I would add Manuge v. Dominion Atlantic Railway Co. at p. 244.
Another note of caution that should be sounded is to be found in Canadian Pacific Railway Co. v. Anderson, where Duff C.J. adopts the statement of Farwell L.J., in Latham v. Johnson, at p. 408, that we must be careful
“not to allow our sympathy with the infant plaintiff to affect our judgment: sentiment is a dangerous will-of-the-wisp to take as a guide in the search for legal principles.”
The basic flaw in the judgment of the trial judge is that, on the facts as he found them and which I accept, he concluded that there existed an allurement which put on the shoulders of the railway company an added burden. On this point I cannot do any better than to refer to the reasons for judgment of Clement J.A., at p. 711. I am in full agreement with him that “a train in normal use cannot be considered to be a concealed danger or trap”.
The true question is to determine whether there was any duty on the railway company to have an employee on the railway crossing at all times to warn the children away from the slowly moving train. In my view, this duty does not exist and I adopt the following extract from the reasons of Duff C.J., in the Anderson case, supra, at p. 207:
It is well known that all boys experience the pressure of the invitation to climb on the back of a vehicle in order to get a ride. It has never been held, so far as I know, that a farmer driving hay to market must have somebody on top of the load to keep an eye on boys who may,
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and almost certainly will, indulge their propensities by getting on the back of the vehicle.
Although these words were written in the context of an examination of the doctrine of allurement, I suggest that they are particularly relevant here. I might add that in the Anderson case, the majority refused to impose upon the railway company the obligation to hire special watchmen to warn children away after the train duly completed had been turned over to the hauling crew.
It should also be kept in mind that in the present instance, a third warning most probably would not have been heeded more than the first two. No employee of the railway could have done anything more than to give such an additional warning; he would have had no right to use physical force to prevent the child from doing what the trial judge finds was being done.
In the absence of any special duty on the railway company and in the absence of a defect in the crossing itself, I cannot but accept the reasons and the conclusion of the Court of Appeal. I would dismiss the appeal.
As to the cross-appeal “with respect to the matter of costs”, I do not see any merit therein and I would adopt the reasons for judgment of McDermid J.A. There should be no order as to costs in this Court.
The judgment of Spence, Dickson and Beetz JJ. was delivered by
DICKSON J.—This is an appeal and cross-appeal from a judgment of the Alberta Supreme Court, Appellate Division, allowing an appeal by Canadian Pacific Limited from a judgment of Kirby J. wherein the appellants were awarded general damages of $85,000 and special damages of $4,837.10 in respect of injuries suffered by the infant appellant Nick Paskivski. I would allow the appeal and restore the judgment at trial for reasons which I shall give, but first a rather detailed statement of the facts, taken in large measure from the careful
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review contained in the judgment of the Appellate Division, is necessary and desirable.
The case arises out of an accident which occurred at a level crossing in Coleman, Alberta, when the infant appellant, then seven years of age, fell under the wheels of a slowly moving freight train engaged in switching operations, and suffered the loss of both of his legs below the knees. There was no breach of statutory duty on the part of Canadian Pacific; the claim, if it is to succeed, must be for breach of a common law duty, as such duty has been delimited by earlier decisions of this Court, to take all reasonable precautions to protect members of the public lawfully using the crossing.
The branch line of the Canadian Pacific runs through Coleman in an east-west direction. South of the line lies a residential district of some 350 people, including over 100 children of school age, known as East Coleman or Bushtown. The main part of the town, including schools, hospitals, theatres, churches and stores, lies to the north of the tracks. Travel between the two areas is channelled along a single roadway crossed by three lines of railway tracks: the most northerly, the main line with station adjacent; the middle, a passing track or siding; and the most southerly, a spur track. The crossing is a very busy one, used by both vehicles and pedestrians although there is no sidewalk to accommodate the latter. It is important to observe that school children living in Bushtown have to go over the crossing several times a day, going to and coming from classes.
The daily train traffic included freight trains which usually conducted switching operations on to the siding at about one o’clock in the afternoon for the purpose of clearing the main line at that time, but also thereby obstructing pedestrian and vehicular traffic wishing to use the crossing. The school children from Bushtown would normally be returning to school at this hour and a group would gather on the south side of the track until the train
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had cleared the crossing. It was at this time and place that the accident in question occurred.
The freight train came from the east on the main line and consisted of some 87 cars and four engines. It had been ordered to take the siding. The train slowed to permit the tail-end trainman to throw the switch, then moved over the switch and on to the siding at a speed of between six and ten miles per hour but the engineer brought it to a stop before it had entirely cleared the crossing. About six cars were left to the east of the crossing. The trainman came up from the switch to the caboose and telephoned the engineer to move the train ahead. This was done and the train again stopped. When the train had first stopped, the conductor got off the train to go to the station. The south side of the crossing was not visible at this time to either the conductor or to the tail-end trainman, and the front-end crew were about a mile to the west. The infant appellant Nick Paskivski, to whom I will refer simply as the appellant, had attended Grade 1 in the previous year and during this period his mother always took him to school across the railway tracks. At the time of the accident the appellant was taking Grade 1 for the second time and the trial judge found he was probably below normal intelligence. In the second year of Grade 1 he was usually taken to school by his mother and sometimes by an elder brother but on the day of the accident the elder brother was ill and the mother stayed home to care for him; the father worked night shifts and was sleeping. The appellant therefore set out alone to return to school for his afternoon classes. As he neared the crossing, he saw the train approaching. By the time he reached the crossing the train was moving slowly across. The appellant was familiar with trains and particularly with the switching operation with which he had been confronted almost daily for the preceding year and one-half. He testified that he was not frightened of trains and his mother testified she had told him he was small and must be “aware” of trains. The appellant stoped quite close to the moving box cars, waiting for them to pass. The surface of the roadway was icy from packed snow and sloped very slightly
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down to the track from a few feet south of the track.
Several other children waited with the appellant. A retired section hand who at the time was walking on the south side of the tracks told the appellant to move further back which he did, but shortly after returned to a position very close to the moving train. The appellant’s actions thereafter were found by the trial judge on conflicting evidence to have involved touching the box cars as they passed. A girl who was present testified she had said to him “Don’t” but he did not heed. The appellant slipped and his legs went under the wheels. His evidence was that the wind had blown his feet from under him. It was a cold and windy day. It would seem the accident happened just as the train was coming to its first stop. No one on the train crew knew of the occurrence until the train stopped the second time, clear of the crossing.
A long line of cases commencing with Grand Trunk Railway Co. of Canada v. McKay, (followed in, inter alia, Anderson v. Canadian National Railways; Canadian Pacific Railway v. Rutherford; Alexander v. Toronto, Hamilton & Buffalo Railway Co. and Ricker; Weiss v. Larson et al.) establishes that a railway company’s duty of care to users of public crossings is limited to discharge of statutory obligations under the Railway Act, R.S.C. 1970, c. R-2 (see ss. 196 to 207) and compliance with orders of the Canadian Transport Commission—unless there are special or exceptional circumstances, in which event a common law duty of care will require additional
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precautions or safeguards.
Kirby J. found “special circumstances” sufficient to take the case out of what might be referred to as the McKay principle. He said:
The circumstances here are that we have a railway crossing by a road which is the only access to and from a community of some 350 people. Access to schools, churches, stores, service stations, all of the facilities offered by the Town of Coleman and the only access.
Then we have the special circumstances that it is the only access available to children, some 100 children going and coming to and from school every morning, every afternoon during the school week. It seems to me that those circumstances impose a special duty on the railway company to reduce to a minimum the danger inherent in a moving train.
The evidence is that the railway failed to take any special precautions. The only precaution was the usual routine railway crossing and the removal of ice from between the tracks at the crossing. There were no other special precautions taken of any kind by the railway company to meet those special circumstances. But there was an added burden in this case on the railway company in so far as the children were concerned by the reason of the allurement which a piece of machinery in motion has for children.
Kirby J. then considered the argument that the action of the appellant in touching the cars was a trespass and concluded, rightly in my opinion, that such action was not a trespass either to the land of Canadian Pacific nor to the train. To characterize the appellant as a trespasser would be, to adopt the phrase of Tritschler J.A. in Lengyel v. Manitoba Power Commission, both “unrealistic and fictitious”. As to the issue of contributory negligence on the part of the appellant, Kirby J. concluded:
It seems to me that the standard of care expected to be expected [sic] from a boy 7 years of age in Grade I, a boy who from my observation in the manner to which he
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gave his evidence, and as his counsel has suggested, is probably below normal intelligence, the standard of care required from such a child is certainly not the same as that that would be imposed on an adult, nor is it the same standard of care that would be expected of a boy even 10 or 12 years of age or a brighter boy in a higher grade in school. Because of the allurement which a moving train has for children, and had for the infant plaintiff in this instance, I am unable to find any negligence on the part of Nicky with respect to this accident.
On the matter of parental responsibility, Canadian Pacific had issued a third party notice claiming indemnification and contribution from the parents and on this issue Kirby J. concluded:
I don’t find any negligence whatever on the part of the parents. I think they acted as any normal parent would do. I don’t think the parents of a 7-year-old child would anticipate or could be expected to anticipate what did happen on this particular occasion, and so I certainly do not find any negligence on their part.
The unanimous judgment of the Alberta Supreme Court, Appellate Division, was delivered by Clement J.A. He held that the doctrine of allurement had no application as the function of the doctrine is, in an appropriate case, to give a child who is in reality a trespasser the status of a licensee. I agree. We are not here concerned with occupier’s liability nor with trespassers. The roadway was not railway property for the exclusive use of the railway company. It was public property which the railway company could use in common with all members of the public, including the appellant. The appellant, as a pedestrian, had an undoubted right to be where he was at the time and place of the accident.
Clement J.A., after a review of the authorities, concluded that the use by the children of the crossing was not an exceptional or special circumstance sufficient to take the case out of McKay and that the appeal should be allowed and the action dismissed; he thus did not find it necessary to deal with quantum of damages nor with the issues of contributory negligence of the appellant or responsibility on the part of his parents.
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As I have reached a different conclusion, it becomes necessary for me to consider these subsidiary issues. I would not alter the quantum of damages. The appellant can no longer run or jump or swim or climb stairs. He underwent extensive surgery and hospitalization. His mental capacity probably fits him for little other than the work of an unskilled labourer yet his physical disability will make it difficult if not impossible for him to do work of this nature. I would also reject the submission concerning contributory negligence on the part of the appellant, who was the same age as the infant plaintiff in the case of Bouvier v. Fee, against whom an allegation of having been contributorily negligent was rejected by this Court. Anglin C.J.C. said, p. 119:
As to contributory negligence or common fault, it is, in our opinion, almost out of the question to raise such an issue as a ground of appeal in the case of a child under eight years of age, i.e., barely above the age under which all responsibility must be denied. Eminently an issue for determination by a trial judge, an appeal from his finding upon it is almost hopeless.
See also McEllistrum v. Etches. Nor, in my opinion, can the claim for indemnity or contribution advanced by Canadian Pacific against the parents prevail. Parents cannot, in the ordinary course of things, give their children constant supervision. There may be practical difficulties. That is apparent from the facts of this very case, distinguishing this case from a case such as Phipps v. Rochester Corp. At the time of the accident the mother was tending a sick child and the father was asleep. The railway company knew, far better than the parents, when a train would be passing or likely to pass over the crossing. The railway company knew that at one o’clock in the afternoon school children would be at that crossing. The railway company which created the danger in the community was in the best position, with the least inconvenience, to protect the children exposed to that danger. Parents are expected to take reasonable steps to protect their children but the obliga-
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tion is not that of an insurer and those who carry on dangerous activities have a duty to use reasonable means to protect others from the dangers attendant upon or incident to such activities.
I turn now to the principal issue, namely, whether special circumstances existed requiring Canadian Pacific to take additional precautions commensurate with the foreseeable risk of harm. The answer to such a question will depend, of course, on the facts of the particular case. In The Lake Erie and Detroit River Railway Company v. Barclay, the railway was found guilty of negligence when the plaintiff was killed when driving home across a level crossing. Sedgewick J., for the majority, had this to say at pp. 363-4:
There was some evidence to show that owing to piles of lumber on the company’s lands at the point in question, his vision of the train was necessarily obstructed, and there was also evidence to show that the train was not sufficiently manned. There was, as the jury have found, no watchman at the crossing. The jury found that the appellants’ negligence consisted in their failure to have a man on the crossing at the moment of the accident. The learned counsel for the appellants endeavoured at the argument to make it appear that the only question raised in this case was as to whether it is to be left to a jury to determine if a railway company can be compelled to place a watchman upon level highway crossings to warn persons about to cross the line and rail. I do not consider that any such broad question is raised here at all. The respondent’s counsel do not make any such contention. It was, I think, properly left to the jury to determine whether or not in this particular case where, late on a dark night, at the terminus of a railway, shunting was being carried on, and that of an excessively dangerous character (the process being that of a running or flying switch), at a place in a town thickly populated, and over a much frequented avenue or highway, there being no engine connected with the train colliding with the carriage, and none of the usual signals such as the blowing of whistles or the ringing of bells to give warning to passers by, it was not necessary, at that particular time and under those particular circumstances, to take
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greater precautions than they really did take, and to be much more careful than in ordinary cases where these conditions did not exist.
The decision of the Ontario Court of Appeal in Anderson v. Canadian National Railways, supra, is frequently mentioned in cases of this nature. Robertson C.J.O. in that case said at p. 177:
The result of the decisions seems to be that, under ordinary circumstances, the railway is permitted to carry on its usual operations in the normal way, at a highway level crossing, without other precautions and warnings than are prescribed by The Railway Act or by the Board, but if the operations are carried on in such a way, or are of such a character, that the public using the crossing is exposed to exceptional danger, as in the Barclay case, or if there are exceptional circumstances, as in the Montreal Trust Co. case, that render ineffective or insufficient the precautions and warnings generally prescribed, then, in such cases, it may be left to a jury to say whether or not the railway has been negligent in failing to adopt other measures for the protection of those who may use the crossing.
In the case of Commissioner for Railways v. McDermott, the Privy Council had occasion to consider the legal position of a railway running express trains through a level crossing, lawfully and necessarily used by the local inhabitants. Lord Gardiner L.C., delivering the judgment of their Lordships, referred to such an “inherently dangerous activity” and in the course of the judgment adopted the following statement of the Lord President in Smith v. London Midland & Scottish R. Co.:
“I deduce from the decision in Cliff v. Midland Railway, ((1870) L.R. 5 Q.B. 258), and from (what is probably more significant for us) a whole series of Scottish decisions, beginning with Grant v. Caledonian Railway Co., ((1870) 9 Macph. 258), and going on to Hendrie, (1909 S.C. 776), that the railway company has a duty at every level crossing where members of the public have a right to be, and where there is reason to
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expect them to be, to take all reasonable precautions in train operations (and perhaps in other respects) to reduce the danger to a minimum, the nature of the precautions which are required and the question whether the duty has been fulfilled depending upon the circumstances of each case …”
The railway was not unaware of the potential danger. On some occasions, according to the evidence of Lori Lee Churla, people were there to chase away children who were standing too close to the train. Her evidence on this point was as follows:
Q. Did the men from the C.P.R. train see you there?
A. I don’t know.
Q. Did they ever have people there to chase you away?
A. Yes.
Q. They would sometimes chase you away?
A. Yes.
Q. And the reason they would chase you away because you would be standing too close to the train, did you ever get chased for being too close, be chased away?
A. Once or twice.
The evidence of Mrs. Kropinak who, with her husband, operated the general store in Bushtown was:
Q. Do the train crew ever put out flag men to keep the children from the train?
A. Well there have been train men, they would I suppose keep the children away if they thought they were too close, but there have been men there.
Q. There have been men there?
A. Yes.
Clement J.A. advanced two reasons for differing with the trial judge on the presence of special circumstances. The first:
In such a case as is before us, I would think that gates would be inadequate, and the only safeguard that could
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be regarded as having some degree of effectiveness would be to have an employee assigned to that crossing whose duty would be to take a stand at the appropriate times and on the appropriate side of the crossing, and act, not only as a flagman, but in effect as a guardian. Further, the efficacy of such a safeguard would be dependent upon its permanency, and if it were provided only on an intermittent basis children would be called on to exercise a higher degree of perceptiveness of danger than if it were not taken at all. Permanent precautions and their nature and scope are for the decision of the Canadian Transport Commission, not the Court.
For my part, I have some difficulty in relating the possible efficacy of particular precautionary measures to the presence or absence of special circumstances. I make no comment on whether or not a gate would have been adequate. There is simply no evidence on the record from which one could determine whether a gate would have given needed protection to the children and I do not think we have to decide this point. In Canadian Pacific Railway Co. v. Anderson, the railway company had assigned an employee to the task, among others, of keeping children away from the passing cars. In the present case it would not seem to have been a difficult task to perform at the most four times a day during school term, neither so burdensome nor so expensive as to be unreasonable in the light of the risk. With respect, I do not agree that the provision of a safeguard on an intermittent basis would require the children to exercise a higher degree of perceptiveness of danger than if no safeguard were provided. There is no evidence to support this conclusion and, within a highway traffic context, it has never been suggested, so far as I am aware, that the provision of school patrols, ensuring the safety of children crossing roads going to and from school, increased the risk of danger to the children.
The second reason advanced by Clement J.A. was expressed in these terms:
In the second place, there is no evidence to warrant a finding that the children, even the youngest, who were accustomed to use the crossing to the knowledge of the train crews, were not capable of forming an appreciation
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of such danger as the situation presented. It is not sufficient that there may be a possibility that such a lack of comprehension exists; there must be some foundation for its probability: Canadian National Railway Company v. MacEachern, [1947] S.C.R. 64 at 78. Here, the same situation had existed for many years, but no evidence was given of any accident, and this tends to fortify the view that the children generally were sufficiently aware. The danger to be comprehended was that in standing too close to the moving boxcars, some mischance might cause the child to slip or fall across the rails. In the absence of special knowledge of the capabilities of a child, the test is objective as to whether a child in that age category is able to appreciate the perils to which his actions may expose him. The evidence does not show that Nick was in fact any less able in this respect than any of the other children: rather, he yielded to an irresponsible impulse, the restraint of which would require a safeguard directed to himself personally, not as a member of a particular segment of the public. I do not think that the exceptional and special circumstances here under consideration go beyond factors which could affect any member of the public, or of the segment of the public concerned, and reach into an examination of the individual.
The point taken would seem to relate more directly to the question of contributory negligence or perhaps foreseeability than to the presence or absence of special circumstances; in any event uncontradicted evidence touching upon the capacity of young children to appreciate the potential danger of passing boxcars was given by Dr. Thompson, a psychiatrist:
Q. Now then at what age would you expect a child, say a normal child might learn without experience by verbal warnings to appreciate the danger of a slow moving train?
A. Well, I think it would be difficult up until the age of eight or nine to appreciate the danger of a slow moving train.
Q. And what is the effect of a verbal warning on a child of six or seven years of age?
A. I don’t think it would be too effective unless this, unless it has seen an experience of something, someone being harmed by a train or—
Q.—what would be the likely situation if a child became very used to the sight of a slow‑moving train at a fairly close distance?
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A. Well I think it would give it a sort of a false sense of security and be more familiar with it and less fearful of it.
Nick Paskivski, the appellant:
Q. Nicky, were you frightened of trains?
A. No.
Lori Lee Churla, a child, a witness for the railway company:
Q. But you weren’t afraid of this train that went by this track?
A. No.
Q. And it came by lots of times when you were going to school?
A. Yes.
John Chomick, retired section hand, a witness for the railway company:
Q. Lots of days the children are gathered at the crossing, aren’t they?
A. Well every day.
Q. Almost every day?
A. Yes.
Q. And you know that the children, lots of times stand too close to the train too?
A. Well so, stay, well you see some stay far away and some, you know, how, the kids, close.
Q. You know—
A.—lots of times some smart kids stay away and some come right close and train goes close and they’re not scared of that, you see.
Samuel Clarence Ferguson, tail-end trainman:
Q. And you know that little tiny kids don’t have the respect for a slow-moving train that they should, don’t you?
A. Well you don’t have to go to little kids to do that.
Q. You get into some big kids too.
A. Yes.
The evidence above quoted tends to the conclusion that the segment of the public with which we are
[Page 708]
here concerned, school children of tender years, were incapable of understanding and comprehending the hazards to which they were exposed by the slowly moving train. It is true, as the learned appellate judge states, there was no evidence of any other accident. The record is neutral. There is no evidence of either accident or absence of accident in preceding years.
The McKay case was decided over seventy years ago, when Canada was, to quote Sedgewick J. in that case, “a young and only partially developed territory”. Davies J. in the same case expressed concern that railway development not be impeded. The past seventy years have wrought many changes within Canada and today one might perhaps be inclined to question the relevance and validity of a rule of law which limits the common law duty of care of a railway to the special case or the exceptional case, particularly if those words are to receive a strict or narrow construction. It may well be that the interests of a young and undeveloped nation are best served by a minimum of impediment to industrial growth and economic expansion but in a more developed and populous nation this attitude of laissez faire may have to yield to accommodate the legitimate concern of society for other vital interests such as the safety and welfare of children. But if the test to be met is that of exceptional or special circumstances, it appears to me it was open to the trial judge to find upon all of the evidence that the appellant had met that test.
In this case in my opinion the trial judge could find the cumulative effect of the following circumstances to be “special circumstances” calling for extra precautions on the part of Canadian Pacific: (i) The crossing was a much used public crossing, not a private or little used crossing; (ii) It provided the only means of access from the predominantly residential part of the community to the rest of the community; (iii) The crossing was used at regular
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times daily, in pursuance of a legal right, by children getting to and from school; (iv) The hour at which the train manoeuvre took place was the hour at which, to the knowledge of the railway, children would be returning to school; (v) There was not, to the knowledge of the railway, either a barrier or a flagman present; (vi) The road was icy and the day was cold and windy, compounding the danger; (vii) The train, a mile or more in length, passing within easy access in a seemingly endless procession of cars, would test the patience of children and afford them ample opportunity to indulge their natural propensity for play or mischief. A slowly moving train can be tempting and attractive to a child: see Gough v. National Coal Board. Yet the railway company took no precautions whatever to minimize the danger. This is not a case, in my opinion, in which it can simply be said that the railway company did nothing abnormal and that the entire fault should be attributed to the parents for allowing a seven-year old child to go to school across a railway track without supervision. In my view the railway company, because of the exceptional circumstances, owed the appellant a duty of care, which it failed to discharge, to protect him against the foreseeable risk of injury as a result of slipping beneath the moving railroad cars. In the recent case in this Court of Mitchell et al. v. Canadian National Railway Co., a nine-year old boy recovered damages for the loss of a leg when he tripped on a shrub or bush, protruding above the surface of an icy embankment on the railway company’s right-of-way and slid down the embankment into the path of a passing freight train.
I would allow the appeal, set aside the judgment of the Alberta Supreme Court, Appellate Division, and restore the judgment at trial with costs in all
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Courts and I would dismiss the cross-appeal with costs.
Appeal allowed and judgment at trial restored with costs, JUDSON, PIGEON and DE GRANDPRÉ JJ. dissenting.
Solicitors for the plaintiffs, appellants: Rice, MacLean, Babki & Evans, Lethbridge.
Solicitor for the defendant, respondent, Canadian Pacific Ltd.: D.B. Hodges, Calgary.
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