saw the plaintiff, but at the same time looked back to speak to the conductor, and the plaintiff was run over and injured. It was held that the defendants were not liable. Erle C.J., says: 1887 GRAND TRUNK Rr. Co. v. BECKETT. J. It is as much the duty of foot passengers attempting to cross a Taschereau street or road to look out for the passing vehicles as it is the duty of drivers to see that they do not run over passengers. In Skelton v. London & N.W. Ry. Co. (f), Bovill C.J., in answer to the argument that the gate being open the deceased had a right to assume that the line was clear, says: The deceased could not have supposed that the position of the ring shewed that the line was clear, because the coal train was standing before the gate; and if the crossing was rendered dangerous by obstructions to the view, it only made it more incumbent upon him to take due care. There is no evidence, however, that the deceased took any care or caution whatever. When he reached the first line of rails he could have seen 300 yards, but it appears from the evidence that he did not look either to the right or left, but walked heedlessly on, and it was owing to this want of caution on his part that the accident occurred. In Cliff v. The Midland Railway Co. (g), Lush J., says: I think that where the Legislature authorizes a railway to cross a way public or private, upon a level, and does not require from the company any precaution to avoid danger, the Legislature intends that the persons who have to cross that line should take the risk incident to that state of things. In Ellis v. The Great Western Ry. Co. (h) the plaintiff, while crossing on a public footway in the evening, was knocked down and injured by defendants on the crossing. He stated that he did not see the train until it was close upon him, that he saw no light and heard no whistling. He stated also that he heard no caution or warning given to him by a servant of the company. A porter, however, swore that he called to him not to cross. The driver and fireman of the engine both swore that the lamps on the train were | (f) L.R. 2 C.P. 631. (g) L.R. 5 Q.B. 258. (h) L.R. 9 C.P. 551. 1887 GRAND TRUNK Rr. Co. v. BECKETT. Taschereau J. lighted. It appears that no signals were given. The jury found for the plaintiff. Held, on a bill of exceptions, that there was no evidence of negligence to go to the jury. Mellor J., at p. 556, says: It is not enough to make out a case to go to the jury that the party injured did not see a light or hear a whistle. He must give evidence which ought to satisfy a jury that there was something negligent or unusual in the conduct of business on that night, . . . and I think that the true inference from the evidence on the part of the plaintiff was that the accident was due entirely to his own want of ordinary care. And Bramwell B., says: The sight and sound of the approaching train were warning enough. If not, I cannot see why it should not be held that when a carriage on a common road crosses a footpath the driver is bound to blow a horn, or stop, or have somebody at the crossing to warn the foot passengers. The Lord Chancellor in The Dublin, Wicklow and Wexford Ry. Co. v. Slattery (i), says: My Lords, I should by no means wish to say that a case in which such a course should be taken might not arise, and indeed had the facts in the present case been only slightly different from what they are, I should have been disposed to accede to the appellants' argument. If a railway train which ought to whistle when passing through a station, were to pass through without whistling, and a man were in broad daylight, and without anything either in the structure of the line or otherwise to obstruct his view, to cross in front of the advancing train and be killed, I should think the judge ought to tell the jury that it was the folly and recklessness of the man and not the carelessness of the company which caused his death. This would be an example of what was spoken of in this House in the case of The Metropolitan Ry. Co. v. Jackson (j), an incuria but not an incuria dans locum injuriæ. The jury could not be allowed to connect the carelessness in not whistling with the accident to the man who rushes with his eyes open, on his own destruction. This expression of the Lord Chancellor is cited with concurrence by Lord Justice Baggallay, in his dissenting (j) 3 App. Cas. 193. (i) 3 App. Cas. 1155. judgment in the case of Davey v. The London & S. W. Ry. Co.(k). Now, with the Ontario cases: In Nichols v. The Great Western Ry. Co.(l), it is said: 1887 GRAND TRUNK RY. Co. v. BECKETT. J. There is a duty incumbent on all persons driving or walking on Taschereau a road crossed by a railway, and it is dictated by common sense and prudence that on approaching a railway crossing they should do so with care and caution both with a view to their own safety as well as the safety of the passengers travelling by the rail. The present Chief Justice of the Queen's Bench Division in Winckler v. The Great Western Railway Co. (m), at p. 264, says: Then as to the necessity of the driver maintaining a lookout, it is quite manifest that this was his duty; he cannot go on at all hazards because the other party is in fault. If this were so, it would have been right of the plaintiff to have killed the donkey in Davies v. Mann(n). And at p. 269 Wilson J., says: The defendants have a right to run their trains, and they can neither go to the right nor left, nor can they stop them at once. Knowing all this the Legislature gave the defendants the right to run their trains, and I think cast the duty upon those who cross their track not to rush in the way of their trains, when in motion, which they cannot control. The case of Johnston v. The Northern Railroad Company (o) is much similar in its facts to the case before this court. The plaintiff having approached and attempted to cross the track at a trot and without looking out, though he could have seen along the line in either direction for some distance, it was held that he could not recover for an injury sustained by a collision with the defendants' train and a non-suit was ordered. The court, at p. 439, say: (k) 12 Q.B.D. 70. (m) 18 U.C.C.P. 250. (0) 34 U.C.Q.B. 432. 1887 GRAND TRUNK Ry. Co. V. BECKETT. It is the duty of a traveller approaching a railway crossing to look along the line of railway track and see if any train is coming, and if he fails to take such precaution and an accident happens, it is more than evidence of negligence in the traveller, it is negligence itself; it is little short of recklessness for anyone to drive on to the track of a railroad without first looking and listening to ascertain Taschereau whether a moving locomotive is near. In general terms a neglect of duty on the part of a railway company will not excuse a person approaching a crossing from using the senses of sight and hearing, where those senses may be available; and when the use of either of these faculties would give sufficient warning to enable the party to avoid the danger contributory negligence is shewn. J. Boggs v. The Great Western Railway Company(p) is also a case which in its facts very much resembles the present case. It appears that neither the plaintiff, his son nor the man that was with him were looking out for or thinking of the train; and it was not until they were on a side track or switch, within 15 yards of the main track, that the man on looking around saw the train, when he sharply told the son to put on the whip; but he said the son appeared confused, and did nothing; he then attempted to get the whip and whip the horses across the track, but it was too late. The court held that there was such contributory negligence on the driver's part as prevented the plaintiff from recovering. At p. 578 it is said: It appears also that even at the moment when Crocker saw the train there was still time either to draw up the horses or even to have crossed the track in safety had either of the men been paying the slightest attention; for as it was the horses crossed and it was only the rear part of the waggon that was struck. The American authorities are also in the same sense. The Supreme Court of the United States in Chicago, Rock Island and Pac. Railroad Co. v. Houston (q), say (p. 701): If the positions most advantageous to the plaintiffs be assumed as correct, that the train was moving at an unusual rate of speed, its bell not rung, and its whistle not sounded, it is still difficult to * 1887 GRAND TRUNK RY. Co. บ. BECKETT. see on what ground the accident can be attributed solely to the "negligence, unskilfulness, or criminal intent" of the defendants' engineer. She (the deceased) was bound to listen and to look before attempting to cross the railroad track in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses she could not have failed both to hear and to see the train which was coming. If she omitted Taschereau to use them, and walked thoughtlessly upon the track, she was guilty J.. of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others. If using them she saw the train coming, and yet undertook to cross the track instead of waiting for the train to pass and was injured, the consequences of her mistake and temerity cannot be cast on the defendant. The case of Gorton v. Erie Railway Co.(r) is, in its main features, somewhat like this case. There were two parallel tracks of a road running east and west. The highway approached the road at an acute angle. There was the usual dispute as to whether or not signals were given by the train, and as to whether there was anything to obstruct the view of the train. The court, at p. 664, says: But these obstacles, if they existed and hid from view the railroad and approaching trains to the extent claimed, did not relieve plaintiff from the duty of looking for an east bound train at the first opportunity, but rather rendered a cautious approach to the crossing the more necessary. Upon the undisputed evidence that if the plaintiff had looked to the west as he approached and reached the north track of the road, he could have seen the train, and that he did not look. He should have been non-suited. In McGrath v. New York Central & H.R. Rd. Co. (s) the defendants had been accustomed to keep a flagman at the crossing in the city of Albany, where plaintiff was injured, but at the time of the accident the flagman had been withdrawn. It was held that this does not excuse a traveller from the charge of negligence in omitting the use of his senses, and the plaintiff was held not entitled to recover. At page 471 the Court of Appeals says: In respect of a person travelling in a highway, which is crossed by a railway, it has been settled by a series of adjudications in this (r) 45 N.Y. 660. (8) 59 N.Y. 468. |