party, without the concurrence of the other, should so desire. 1889 HALIFAX BANKING Co. v. MATTHEW. The action has been prosecuted diverso intuitu, and a suit for an account with a view to a sale under the statute, or with a view to equitable execution in any form, would Patterson J. probably involve considerations concerning the use of the plant, etc., which has perished in the using, and other complications which would be better dealt with in a separate action. The action, as instituted, and as so far prosecuted, fails, and we should simply dismiss the appeal with costs. The plaintiffs will, of course, be at liberty notwithstanding this judgment to proceed to redeem if so advised. The appeal is dismissed with costs, but the plaintiffs to be at liberty to file a bill for redemption if so advised. Appeal dismissed with costs. Solicitors for appellants: Malcolm & McLeod. 1889 **Mar. 30. **June 14. *HESTOR JONES, EXECUTRIX OF THE) LAST WILL AND TESTAMENT OF THOMAS APPELLANT; ...... AND THE GRAND TRUNK RAILWAY COM PANY OF CANADA (DEFENDANTS).. RESPONDENTS. ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO. Railways Station buildings-Dangerous way—Invitation or licence The approach to a station of the Grand Trunk Railway from the highway was by a planked walk crossing several tracks, and a train stopping at the station sometimes overlapped this walk, making it necessary to pass around the rear car to reach the platform. J., intending to take a train at this station before daylight, went along the walk as his train was coming in, and seeing, apparently, that it would overlap, started to go around the rear when he was struck by a shunting engine and killed. It was the duty of this shunting engine to assist in moving the train on a ferry, and it came down the adjoining track for that purpose before the train had stopped. Its headlight was burning brightly, and the bell was kept ringing. There was room between the two tracks for a person to stand in safety. In an action by the widow of J. against the company: Held, affirming the judgment of the Court of Appeal (16 Ont. App. R. 37), Fournier and Gwynne JJ., dissenting, that the company had neglected no duty which it owed to the deceased as one of the public. Held, per Strong and Patterson JJ., that while the public were invited to use the planked walk to reach the station, and also to use the company's premises, when necessary, to pass around a train covering the walk, there was no implied guaranty that the traffic of the road should not proceed in the ordinary way, and the company was under no obligation to provide special safeguards for persons attempting to pass around a train in motion. *XVIII. Can. S.C.R. 696. **PRESENT:-Strong, Fournier, Taschereau, Gwynne and Patter son JJ. Held, per Taschereau J., that the death of the deceased was caused by his own negligence. Held, per Patterson J.-In an issue of negligence, the jury should be asked, “What was the duty which you find to have been neglected ?" APPEAL from a decision of the Court of Appeal for Ontario (a) allowing an appeal from the judgment of the Chancery Division of the High Court of Justice for Ontario, which affirmed the judgment in favour of the plaintiff entered at trial on the findings of the jury, and dismissing the action with costs. The accident out of which the action arose occurred at a station of the respondents at Point Edward, opposite Fort Gratiot, on the St. Clair River, and immediately at the outlet of Lake Huron. At this point there is a steamboat ferry carrying railway trains across the river. The respondent's station is built on the north side of nearly all the tracks. The way for horses, carriages and foot passengers to the station was by a planked walk about 12 feet wide, commencing south of the tracks at the terminus of the street railway, and extending across the tracks to the platform of the station. On the morning in question the plaintiff's husband, who resided at Fort Gratiot, but who had been visiting his sister at Point Edward, left his sister's house shortly after six o'clock, intending to return home by the early train from the East, due at 6.15 a.m., but which did not arrive on that morning until 6.30 a.m. As he approached the station this train was just coming in and drawing up on the first track, which was that nearest to the platform, and it was then passing over the plank walk, obstructing, for the time, further passage to the platform. Jones, who was then on the plank walk, spoke to McMillan, a car repairer in the company's service, who was standing there just at the rail of the second track, and asked where the morning train was from. He was told it was from Toronto. McMillan says he then turned away, (a) 16 Ont. App. R. 37. 1889 JONES v. GRAND TRUNK Ry. Co. 1889 JONES v. GRAND Rr. Co. and that when he next noticed him, which must have been but a moment or two later, he saw that he was going in an easterly direction, walking between track No. 1 and track No. 2, for the purpose, as he supposed, of going round the rear of the train to the platform. He had hardly gone 20 feet from the east side of the walk when he was overtaken and knocked down by the projecting buffer beam of a shunting engine, which came up behind him on track No. 2. He was walking close to the end of the ties of this track, probably for the purpose of keeping as far away as possible from the moving train on his other side. The shunting engine in question was standing, when Jones came up to McMillan, some distance, perhaps 150 feet, as one witness says, west of the plank walk, on track No. 2 (in the evidence as reported there is some confusion occasioned by the way the witnesses speak of this, but it was west), and it started to go up that track to the east for the purpose of switching on to track No. 1, some 400 feet beyond the plank walk, and then backing up behind the incoming train to assist in the work of trans-shipping it to the ferry boat. It was stationed at the point it started from for the sake of convenience in giving orders to the engineer, and was being moved and managed, so far as time, place and purpose were concerned, in the usual and ordinary course of the defendants' business. It was going at the rate of two or three miles an hour, and, if stationed 150 feet distant from the crossing, must have started before Jones left it, as the accident happened at a spot distant therefrom hardly more than (if so much as) the length of the engine. When McMillan saw Jones walking between the tracks he shouted to the men on the engine, which had then passed the crossing, and his call being apparently unheard, he shouted again. Another man T. Martin, also in defendants' service, who was seven or eight feet from Jones in the same direction, but facing the engine, also called out and ran towards him. As he did so the unfortunate man turned his head, and was knocked down by the buffer of the engine as already described. The morning The rear car R. M. Meredith, for the plaintiff. There was an invitation or permission by the company to the deceased and others to leave the plank walk and seek other means of access over their grounds, to the platform because passenger trains frequently drew up across the walk, and necessarily did so (as the train in question finally did) when made up, as it was, of more than five cars. in this instance overlapped the walk by about 30 feet. There being this invitation or permission of the company to deviate from the provided and usual way, there was negligence (1) on the part of the men in charge of the engine in not keeping a proper look out; (2) in using an engine with a buffer projecting so much over the space between the tracks; (3) in stationing the engine west instead of east of the crossing, thereby making it necessary to traverse the crossing in going to switch on to track No. 1; and (4) to summarize generally all other objections, that there was negligence in not using more than ordinary care and caution to prevent accidents at a place which was certainly danger ous. D'Alton McCarthy, Q.C., for the respondents, contended that there was no negligence in the manner of moving the shunting engine that killed the deceased, but that the latter was guilty of negligence in stepping off the plank walk and proceeding between the tracks without looking behind to see if there was any engine moving on the second track. 1889 JONES v. GRAND TRUNK Ry. Co. STRONG J.-I am of opinion that this appeal should be dismissed with costs for reasons in the judgment pronounced by Mr. Justice Patterson. |