1889 BATE v. RY. Co. circumstances of the case constitute "any negligence or omission of the defendants or their servants" within the meaning of the section of the statute under consideration. CAN. PAC. Upon this point I entirely concur in the judgment of Mr. Justice Patterson. The place where the accident occurred Gwynne J. was upon that portion of the Canadian Pacific Railway which was constructed by the Dominion Government. It became the property of the defendants only by transfer to them from the Government under the statute incorporating the company after its completion. The defendants had nothing whatever to do with the construction of the roadbed, and they, therefore, cannot be charged with any negligence in its construction. Ever since the company have received possession of the section so constructed by the Government they have maintained it and have worked it continuously up to the time of the occurrence of the accident, a space of time covering nine years without any appearance of any defect or imperfection of any kind being exhibited at the place in question. Not a tittle of evidence was offered for the purpose of establishing that there were any indications of defect from which the officers and servants of the company, or some of them, could and should have discovered and repaired the imperfection in the construction which the jury have found to have been the cause of the accident. No negligence has been imputed to the defendants for their not having discovered and repaired the defect. In The Canadian Pacific Ry. Co. v. Chalifoux (ii) this court has decided that they were not guilty of negligence, and that no action would lie against them as for negligence for not having discovered a defect in a rail (by the breaking of which an accident had occurred) which presented no indications by which the defect being latent could and should have been discovered; and there is no more reason why they should be held responsible for an accident occasioned by reason of the improper construction of the roadbed, not constructed by themselves, and which (ii) 22 Can, S.C.R. 721. 1889 BATE บ. CAN. PAC. presented no indications of the presence of a latent defect by which it could and should have been discovered, than in the case of an accident accruing from a broken rail Ry. Co. as in The Canadian Pacific Ry. Co. v. Chalifoux (iii). Gwynne J. Then, as to the answers of the jury to the questions submitted to them as to the possibility of the baggage having been saved by proper efforts of the company's servants if they had proper appliances, and as to whether they had proper appliances, it is impossible, I think, to add anything to what has been said upon these questions by several of the learned judges in the court below. I shall only say that my surprise is not so much that the jury answered those questions as they did, as that they should have been submitted to them, for the evidence certainly disclosed no facts which justified their submission. In so far, then, as any question whether or not the accident was occasioned by the defendants' negligence is concerned, it is impossible, in my opinion, that the plaintiff's action can be sustained. The only material question, therefore, in the case is that raised by the plaintiff's replication to the defendants' plea of their liability having been limited by contract to the sum of $100, which has been paid into court. In order to prove the contract set out in the plaintiff's statement of claim, namely, a contract for the safe carriage and delivery by the defendants, as common carriers, of the baggage of the plaintiff delivered to them to be carried forward, the plaintiff herself and her brother gave evidence to the effect that they went together to the defendants' office to purchase a ticket for the plaintiff to go by the defendants' railway to Winnipeg; that they asked for a return ticket, to Winnipeg and back. The defendants did not sell any return tickets to Winnipeg, except in a special form designed for the use of persons going up to Manitoba to look for lands in contemplation of settlement, and which they called Land Seekers' tickets. These tickets were good for 40 days only. (iii) 22 Can. S. C. R. 721. 1889 BATE บ. RY. Co. The plaintiff and her brother say that when they asked for a return ticket to Winnipeg the agent replied that they could have one good only for 40 days, but as the plaintiff CAN. PAC. wished to remain at Winnipeg longer, that her brother asked the agent if he could not issue one good until the Gwynne J. 16th or 20th December, to which the agent consented, and proceeded to make out the ticket good to 21st December, and when he had done so. he handed it over to the plaintiff and asked her to sign it. The plaintiff having asked why she should sign it, the agent replied for the purposes of identification; that the ticket was not transferable and would have to be presented at Winnipeg and would have to be signed for the purposes of identification. Accordingly she signed it in the presence of the agent, who signed his name as witness to her signature, and she paid $55.00 for the ticket and took it away. This was at 10 o'clock in the morning of the 30th September. Twelve or thirteen hours afterwards she went down to the train, presented her ticket, had her baggage checked and went in the train upon her passage to Winnipeg. The ticket so purchased by her was produced at the trial and identified by the plaintiff, and whatever may be its tenor it constituted the only evideuce which was offered of any contract between the defendants and the plaintiff for the carriage of herself and her baggage for hire and reward as alleged in the statement of claim or otherwise. The plaintiff's brother accompanied her to the defendants' office for the purpose of assisting and advising her in the purchase of her ticket, as we may well presume, and as indeed would seem from the prominent part which he took in the purchase of it. Now it is to be observed that the ticket which they purchased, and which was produced at the trial and identified by the plaintiff, both in external form and appearance as well as in its contents, was quite different from the ordinary tickets sold by the defendants for full fare. The ticket was a special one designed, as already said, for the use of persons going to Manitoba looking for land, and was called "Land 1889 BATE Rr. Co. Seekers" ticket. It was sold at a rate considerably reduced from the ordinary fare, namely, for $55.00 for the journey CAN. PAC. to Winnipeg and back, whereas the ordinary price charged for a ticket to Winnipeg is $40, and for a ticket from WinGwynne J. nipeg to Ottawa $46. The plaintiff could not have got a return ticket to Winnipeg and back in any other form than this "Land Seekers" ticket. Not only was it special in its external form, but also in its terms. It had printed upon its face the following: Issued by Canadian Pacific Railway. Good for one first-class passage to station stamped or written in margin of attached coupon and return-only on presentation of this ticket when stamped by company's agent and presented with coupons attached subject to the following contract: 1st. It is not good for passage if any alterations or erasures whatever are made hereon. 2nd. If the coupons are marked second-class or emigrant the passenger is entitled to such passage only. 3rd. If this contract and its coupons bear no 'L' punch cancellations or stamp other than the ordinary dating stamp the passenger is entitled to all the privileges accorded to holders of unlimited tickets of like class. 4th. If this contract and its coupons are cancelled with an ‘L' punch it indicates that the ticket was sold at a reduced rate and must be used on or before the expiration of date as cancelled on the margin hereof, and that no stop over will be allowed hereon; if not so used or if more than one date is cancelled it is void. 5th. This ticket is not transferable; it must be signed by the passenger in ink, and if presented by any other than the original purchaser whose signature is hereon the conductor will take it up and collect full fare; the purchaser will write his or her signature when requested to do so by the conductors or agents. 6th. The return part of the ticket will not be honoured for passage unless the holder identifies himself or herself as the original purchaser to the satisfaction of the ticket agent of the Canadian Pacific Railway at station stamped or written in margin of the ticket, and unless officially signed and dated in ink and duly stamped on back hereof by authorized agent. 7th. Baggage liability limited to wearing apparel not exceeding $100.00 in value. 8th. The coupons belonging to this ticket will not be received for passage if detached, In consideration of the reduced rate at which this ticket is sold I hereby agree to all the provisions of the above contract. 1889 BATE v. CAN. PAC. Such was the form and substance of the ticket to which Gwynne J. were attached several coupons. This was the only ticket which the plaintiff bought, and it is upon the contract, which is contained in it, that her action is brought. She offered evidence of no other. In point of fact there was no other contract entered into by the defendants with the plaintiff than that which is expressed in this ticket, which she signed. She took it away with her, and after having it in her possession for twelve hours, during which she and her family had the fullest opportunity of perusing it, she made use of it, and upon the faith of it became a passenger on the defendants' railway and placed her luggage in possession of the defendants for carriage by them. Under no other contract than that contained in the ticket did she deliver her luggage to the defendants or did they receive it for carriage. Now all that the plaintiff and her brother say as to what took place at the time the plaintiff signed her name at the foot of the ticket is, that when the defendants' agent had filled it up and handed it over the counter to the plaintiff to sign, she enquired-Why she was to sign it? This was a very natural question for her to ask. The idea would naturally occur to her mind that it was rather unusual that a purchaser of a railway pasenger's ticket should be asked to sign it. She would naturally know that the purchasers of ordinary tickets are not required to sign them. It was natural, therefore, for her to ask why she should sign it. But this question would not be likely or calculated to convey to the mind of the agent the idea that what she was asking for was information as to the contents of the document she was asked to sign; it lay before her, was in her hands and plainly expressed what its contents were. She says that she did not read the ticket because her eyes were |