1887 GRAND TRUNK Ry. Co. บ. BECKETT. Taschereau J. state, that he is bound on approaching the crossing to look and listen, if by so doing he can discover the proximity of a moving train, and that the omission to do so is an omission of ordinary care which will prevent his recovering for an injury which might have been avoided if he had used his faculties of sight and hearing. Salter v. Utica & B. R. R. Co. (t). Deceased had been hauling logs in the vicinity of the crossing for some weeks. There were buildings obstructing the view of the track from the highway in places. He drove upon the crossing and was run over. The Court of Appeals, at p. 281, says: The principle which requires that a man shall use his ears and eyes in crossing a railroad track, so far as he has opportunity to do so, equally demands that he shall employ his faculties in managing his team, and thus keep out of danger, and the fact that the view was obstructed for a certain distance, imposed the greater obligation of holding his team in check. Pennsylvania R.R. Co. v. Beale (u) is a case which has been frequently recognized in our courts. At pages 509510 the Supreme Court says: There never was a more important principle settled than that the fact of the failure to stop immediately before crossing a railroad track is not merely evidence of negligence for the jury, but negligence per se and a question for the court. Collisions of this character have often resulted in the loss of hundreds of valuable lives of passengers on trains, and they will do so again if travellers crossing railroads are not taught their simple duty, not to themselves only but to others. Butterfield v. Western Rd. Corp. (v). The plaintiff was struck while crossing the railroad on a highway. The night was dark and stormy and he did not look, although he listened for a train, relying upon a signal to apprise him of his approach. The Supreme Court held, assuming that the duty of sounding the bell or whistle was violated, and that the plaintiff had a right to expect those signals to be given, that this did not relieve him from the use of both eyes and (t) 75 N.Y. 273. (u) 73 Pa. St. 504. (v) 10 Allen (Mass.) 532. ears, as he approached the crossing, and that a failure to do so was negligence, and the plaintiff could not recover. In the case of The Central Railroad Co. of N.J. v. Feller (w) the facts were these: A watch house stood near the track and obscured the view. Deceased was familiar with the crossing (and so was Beckett in the case before this court), but he did not stop to look until he come in front of the building, although there was considerable space before reaching it where the train could have been seen. The court held that a verdict should have been directed for the defendant, notwithstanding the negligence of the defendant. The same jurisprudence prevails in the Province of Quebec. See Tousignant v. Boisvert (x); Moffette v. Grand Trunk Ry. Co. (y). GWYNNE J.-The question in actions of this nature is not merely whether the defendants have been guilty of negligence. That is the first question to be determined, for if they were not guilty of any negligence they cannot be made liable at all, but they may have been guilty of very great negligence and yet not be liable; but, secondly, the death must be traced to the defendants negligence as the causa causans mortem, for if the act of collision which caused the death could have been avoided but for some negligence of the deceased himself, then the deceased was guilty of what is called contributory negligence, and in such case the defendants are exempted from liability, however great may have been the negligence attributable to them; so that in effect the negligence of the defendants, which renders them liable in an action of this nature, must be the sole cause of the death, without any negligence on the part of the deceased, which can be said to have contributed to the fatal result. Now, in the present case, I concur with those of my learned brothers, who think that the deceased was guilty of contributory negligence, and I can only attribute the (w) 84 Pa. St. 226. (x) 1 Rev. de Lég. (1820) 503. (y) 16 L.C.R. 231. 1887 GRAND TRUNK Rr. Co. บ. BECKETT. Taschereau J. 1887 GRAND TRUNK RY. CO. 0. BECKETT. Gwynne J. finding of the jury to the contrary, to the well known and natural sympathy which, in the minds of jurors, exists for the family of a person killed by a railway company, and the absence of all sympathy for the companies, which combined causes have the effect too often of shutting our eyes to evidence unfavourable to the plaintiff, and of closing the doors of justice against the companies. I am of opinion that the appeal should be allowed with costs. As to the insurance money, I am of opinion that the jury should have been told that they should take into consideration the benefit accruing to the plaintiffs from the insurance in order to determine the amount of damage accruing from the death, but I cannot see my way to allow the deduction in the present case as matter of absolute right. Appeal dismissed with costs. Solicitor for appellants: John Bell. Solicitors for respondent: Folinsbee & Going. ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA. Chose in action-Sufficiency of assignment—Statute of Limitations Action brought by the plaintiff as assignee of one T. against the Held, affirming the judgment of the Supreme Court of Nova Scotia, that the notice of the assignment given was a sufficient compliance with the statute (R.S.N.S., (4 ser.), ch. 94, sec. 357), and that the letters written by the defendants' testator to the assignor of the plaintiff were a clear acknowledgment of the debt and sufficient to take it out of the provisions of the Statute of Limitations. APPEAL from a judgment of the Supreme Court of Nova Scotia (Graham J., dissenting), affirming the judgment at the trial in favour of the plaintiff. This action was brought by the plaintiff as assignee of *XVIII. Can. S.C.R. 716. **PRESENT:-Sir W. J. Ritchie C.J., and Strong, Fournier, Taschereau and Patterson JJ. 1891 GRANT v. CAMERON. one Finlay Thompson against the defendants as administrator and administratrix of Alexander McDonald, deceased. The evidence shewed that the deceased, Alexander McDonald, had received monies from Finlay Thompson, and that no part of the debt had ever been paid to Thompson or his assignee. The defence attacked the sufficiency of the notice of assignment required to be given under sec. 357, of ch. 94 (4 ser.) R.S.N.S., which, along with a preceding section, reads as follows: 355. Any assignee, by writing signed by the assignor of the entire interest in any chose in action founded on any contract for payment of money only or in any judgment, decree or order for payment of money only, and who would have been entitled to maintain a suit in equity as such assignee to enforce such contract or the payment of such money, and the executor or administrator of such assignee shall be entitled in his own name, to maintain such personal action in the Supreme Court and have such final judgment and execution in as full a manner as the person originally entitled to such chose in action, judgment, decree or order, and whose interest has been assigned, might have had or done. 357. No action shall be brought upon any such assignment by such assignee, unless a notice in writing signed by him, his agent or attorney, stating the right of the assignee and specifying his demand thereunder, shall have been served on the party to be sued, or left at his last place of abode at least fourteen days before the commencement of such action. The notice of assignment given read as follows: Alexander Grant, Esq., Administrator Estate of Alexander McDonald, deceased. Dear Sir,-You are hereby notified in accordance with chapter 94 of the Revised Statutes, sec. 357, that the debt due by the said estate to Finlay Thompson has been assigned by him to Alexander D. Cameron, who hereby claims payment of $1,200, the amount of the said debt so assigned to him. S. H. HOLMES, Attorney of A. D. Cameron. The following letters were put in to establish an acknowledgment by the defendants' testator of the indebtedness: |