1886

FRASER

v.

STEPHENSON

Henry J.

payment notes which he indorsed to the plaintiff to retire his own notes given to the latter in the course of such business. It is also in evidence that regular accounts were kept between John and David from time to time, and, at the end of certain periods, John gave notes to David for amounts supplied by him. These are facts which negative the statements of the plaintiff that the notes were to be given by John under the agreement as stated by him.

Matters went on in this way until David became largely behind hand with the plaintiff, and then, for the first time, the plaintiff applied to John and asked him to interfere in the matter, but he refused to do so.

The plaintiff says, it is true that all the accounts were kept with David, but still the credit I have given hitherto was not to David, but to John. If David was the mere agent of John, why should he be called upon to give notes at all? There is an incongruity in the mode of the transaction which appears to me to be strong evidence against the plaintiff's contention. The action is not sought to be sustained against John as the guarantor of David, and it is shewn that all the accounts of the plaintiff were kept with David who, under the evidence, was the primary debtor.

We are told also that there was no improper reception of evidence at the trial. As to that I may say that I agree with my brother Gwynne, whose prepared judgment I have seen, and for the reasons he gives, that it is our duty to grant a new trial in this case. We have every reason to conclude that the jury as instructed took a wrong view of the weight and import of the evidence, and that the evidence was not sufficiently laid before them to enable them to come to a proper conclusion. And not only that but that the evidence in regard to what passed between the plaintiff and David was improperly received and was highly calculated to influence the jury. The plaintiff had nothing to do with notes given by John to David for supplies furnished by the latter and, because those notes were given and John was not answerable for David's statements to the plaintiff.

1886

FRASER

v.

It was but hearsay evidence, in the absence of proof of any authority, from John to make them. It is not shewn that David had any authority to make any such statements, and STEPHENSON if they were not withdrawn from the jury the verdict should be set aside on the ground also of improper reception of evidence.

I think for the reasons given the appeal should be allowed and the case submitted to another jury.

TASCHEREAU J., concurred with the Chief Justice.

Appeal allowed with costs.

Solicitors for appellant: E. & R. McLeod.
Solicitors for respondent: Harrison & Rand.

Henry J.

1886

*GRAND TRUNK
TRUNK RAILWAY
RAILWAY COM-

**Nov. 15. PANY OF CANADA (DEFENDANTS)..

1887

AND

**June 20.

ESTHER BECKETT (PLAINTIFF).

APPELLANTS;

RESPONDENT.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Railway company — Negligence — Contributory negligence—Crossing
-Accident-Life policy-Deduction from damages-Practice—
Court equally divided-No costs.

Plaintiff's husband was driving in his waggon along the highway in
the town of Strathroy where it crossed the defendants' line of
railway. There was evidence to shew that the view of an ap-
proaching train was obstructed by the station house, buildings
and cars, until a person approaching on the highway had reached
within a short distance of the main line. The evidence was
contradictory as to the ringing of a bell or the sounding of a
whistle, but the jury found that the engineer had failed to do
either in approaching the crossing in question. The plaintiff's
evidence shewed that the deceased, in approaching the crossing,
was driving with his head down, apparently oblivious of his sur-
roundings. For the defence it was deposed to, that the deceased
was driving slowly in approaching the main track with his head
down, but when some distance off he perceived the train and
struck his horses with a whip, but was hit before he was able to
cross the line. The jury found the defendants guilty of negli-
gence and negatived any contributory negligence on the part of the
deceased. The deceased had effected a policy of insurance on his life,
and, at the trial, the jury were directed to deduct the amount of
the policy from the verdict. The Divisional Court, Wilson, C.J.
dissenting, held that the case was one for the jury; that the
findings in plaintiff's favour should not be disturbed, and that the
policy of insurance had been improperly directed by the learned
judge at the trial to be deducted from the damages. In the
Court of Appeal it was held that it could not be said that
the verdict of the jury was against the weight of evidence,

*XVI. Can. S.C.R. 713.

**PRESENT:-Sir W. J. Ritchie C.J., and Strong, Fournier, Henry, Taschereau and Gwynne JJ.

applying the principles laid down in Metropolitan Ry. Co. v. Wright (11 App. Cas. 152). Hagarty C.J., and Osler J., were of opinion that the policy of insurance should be deducted from the damages, while Burton and Patterson JJ., were of the contrary opinion.

Held, per Sir W. J. Ritchie C.J., Fournier and Henry JJ., that the appeal should be dismissed with costs.

Held, per Strong, Taschereau and Gwynne JJ., dissenting, that the deceased was guilty of contributory negligence.

Held, per Sir W. J. Ritchie C.J., and Strong, Fournier and Henry JJ., that the policy of insurance should not be deducted from the damages.*

Held, per Taschereau J., that it was the duty of the deceased before attempting to cross the track to look and see whether a train was approaching, and that his failure to do so was the cause of the accident.

Held, the court being equally divided, that the appeal should be dismissed without costs.

1887

GRAND

TRUNK Rr. Co.

บ. BECKETT..

APPEAL from a judgment of the Court of Appeal for Ontario (a) affirming the judgment of the Divisional Court (b) discharging with costs an order nisi obtained by the defendants to set aside the findings and verdict of the jury and the judgment thereon in an action for damages. for death resulting from the negligence of the defendants, and making absolute an order nisi obtained by the plaintiff to increase the verdict by the amount of a life policy deducted by the jury in assessing the damages.

The facts of the case are sufficiently set out in the head note.

Osler, Q.C, appeared for the appellants.

S. H. Blake, Q.C., and Folinsbee, appeared for the respondent.

SIR W. J. RITCHIE C.J., was of the opinion the appeal should be dismissed with costs.

*Cf. Grand Trunk Railway Co. v. Jennings, (13 App. Cas. 800)

1887

GRAND

STRONG, J., was of a different opinion as to contributory negligence. As to the point respecting the insurance, he Rr. Co. agreed with the Chief Justice.

TRUNK

v.

BECKETT.

FOURNIER and HENRY JJ., concurred wth the Chief Justice.

TASCHEREAU J.-I am of opinion to allow this appeal, upon the ground that Michael Beckett, the deceased, was guilty of contributory negligence. It was his duty to look to see whether a train was approaching, as he attempted to cross the track. The evidence shews that had he looked he would have avoided the accident. His conduct, on this occasion, his posture, his deep inattention and total disregard of his surroundings are to me utterly unexplainable. I would say with the Chief Justice of Ontario:

If parties so acting can recover it must be solely on the ground that the defendants are a railway company; and to hold them entitled to damages notwithstanding this total disregard of their own safety is to encourage carelessness and endanger human life.

Nicholls v. Great Western Railway Co. (c). The following authorities fully sustain the appellant's contentions on this point.

Baron Pollock in Stubley v. The London and N. W. Railway Co. (d):

A railway is in itself a warning of danger to those about to go upon it, and cautions them to see whether a train is coming.

And Channel B., in the same case, says:

But passengers crossing the rails are bound to exercise ordinary and reasonable care for their own safety, and to look this way and that to see if danger is to be apprehended.

In Cotton v. Wood (e), which was an action by plaintiff, who was run over by an omnibus, it appears that the driver

(c) 27 U.C.Q.B. 382.

(d) L.R. 1 Ex. 13.

(e) 8 C.B.N.S. 568.