Statement.

tiff with costs, and this judgment was affirmed by the Divisional Court.

The defendants appealed, and the appeal came on to be heard before this Court (HAGARTY, C. J. O., BURTON, OSLER, and MACLENNAN, JJ. A.) on the 13th of March, 1890.

Robinson, Q. C., and G. F. Shepley, for the appellants. The provisions of R. S. O. (1887), ch. 212, and R. S. O. (1887), ch. 141, do not apply to this action; the former because the defendants are not within the jurisdiction of the Province of Ontario, and the latter because no notice has been given as required by that Act. The case turns upon the construction of sections 262 and 289 of the Dominion Railway Act, 51 Vic. ch. 29. The appellants contend that under section 289 servants of the company have no new right of action against the company; that is, that servants are not included in the words " any person," but that as to them the common law doctrine still applies, and that as in this case the accident happened owing to the negligence of a fellow-servant the plaintiff cannot

recover.

The general right of action given by the section in question must be construed with reference to the acts prohibited, or the omissions referred to, in the previous sections, and among these previous prohibitions and requirements are many which are applicable only to the protection of the public. If Parliament had intended to effect a radical change in the common law affecting the relations between master and servant, it would have adopted apt legislation for that purpose. It is not to be presumed that Parliament intended to abrogate the common law, nor is it necessary, in order to give a reasonable and full effect to the section in question, that it should be considered as so doing, when this provision may very reasonably be interpreted as relating to the rights of the public in the preceding sections referred to.

In the United States, statutes of this kind have

been construed as not applying between master and Argument. servant: Randall v. Baltimore & Ohio R. W. Co., 109 U. S. 478; Carle v. Bangor, etc., R. W. Co., 43 Me. 269; Rohback v. Pacific R. W. Co., 43 Mo. 187; Proctor v. Hannibal, etc., R. W. Co., 64 Mo. 112; Sullivan v. Mississippi, etc., R. W. Co., 11 Iowa 421; Thompson on Negligence, pp. 1004, 1005; 2 Harvard L. Rev. p. 212.

There being no decisions on the question in our own Courts, the American authorities ought to be followed.

Assuming, however, that the section in question does apply to servants, it merely, at most, removes out of the servant's way the defence that the master might otherwise have raised, that the omission to pack the frogs was one of the risks of the employment. To the master are still left all other defences which he might have set up at common law. To enable the servant to succeed, therefore, it must be shewn that he was himself ignorant of the defect, and that the master was aware of it. Here the jury have found that the plaintiff ought to have known of the defect in question, and this is fatal to the right of recovery: Griffiths v. The London and St. Katharine Docks Co., 12 Q. B.D. 493, 13 Q. B. D. 259; Clegg v. Grand Trunk R. W. Co., 10 O. R. 708; Thompson on Negligence, p. 995. Thomas v. Quartermaine, 18 Q. B. D. 685, and that class of cases, do not apply, they being decided under special legislation, doing away with the common law doctrine. See Patterson on Railway Accident Law, pp. 160, 382.

Delamere, Q. C., for the respondent. The only reasonable construction of this section is, that it gives to any person, whether a servant or not, a statutory right of action for negligence of the company. It is not a question of negligence by a fellow servant. The company could not delegate their responsibility to a subordinate, and if they chose to leave to a subordinate the duty of complying with the terms of the statute, and that subordinate did not comply with these requirements, the company are not in any way relieved. The requirement as to packing frogs cannot apply to the public alone, if indeed

Argument.

it applies to them at all. Such a requirement can only be intended for the protection of persons who have occasion to cross the tracks of the railway company, and the only persons who have the right to do this are the servants of the railway company, the public, if they attempt to do this, being trespassers. Many of the other provisions of the statute apply clearly to servants of the company though the word "person" is used. The American cases do not, when carefully considered, go further than to preserve to the master the right to say that the negligence complained of is not his but that of a servant, and to enable him to raise the defence that the negligence being that of the fellow servant, the servant complaining cannot recover, but in this case and under our statute, the defence that the negligence complained of is that of a fellow servant. cannot be raised. The duty is the duty of the master, and the negligence is also therefore the negligence of the master. Even admitting that there was negligence on the part of the fellow servant, still there was also negligence on the part of the master, and in that case, the servant injured could, even at common law, bring his action. The answer of the jury that the plaintiff should have had notice that the frog was not packed, means that the defendants should have informed him of that fact, and not that he himself should have been aware of it. This is plain from reading the Judge's charge, and from reading the other answers of the jury, for they find against contributory negligence, and therefore necessarily against knowledge on the part of the plaintiff.

Robinson, Q. C., in reply.

May 13th, 1890. HAGARTY, C. J. O

I do not think that any question of importance requires extended notice on this appeal except the very serious point as to whether the remedy given by the statute applies to railway servants. As to the meaning of the answer of the jury to the question whether the plaintiff

had notice or knowledge, or ought to have had notice or Judgment. knowledge that the frog was not packed, I agree with the learned Chancellor.

Looking at the Judge's charge it would seem that the jury were being directed to the enquiry whether the plaintiff personally knew or ought to have known that it was not packed. But I cannot see any rational ground for interfering from any possible misunderstanding on this. I do not think the jury meant to impute any want of care in not seeing that this defect existed. The omission either to ask or not to answer such a question, would not, I conceive, warrant an interference with the verdict, looking at the other findings of the jury.

On the main point. It must certainly be a matter of very great regret if the law requires us to hold that certain satutable requirements for the safety apparently of all persons, must be held to have excluded from their operation the class almost exclusively affected by their non-observance.

The appellants argue that the section in question only applies to persons not railway servants. Neither ailway passengers nor the general public can be regarded as likely to suffer from non-packing of a frog.

The general public in fact are by the same statute (section 273) forbidden to trespass on the track under a penalty.

We find in the same Act (section 192) provisions for ensuring a headway of at least seven feet between the top of the highest freight car and any bridge under which the road passes.

It is difficult to see what persons outside the class of railway s.rvants are intended to be protected. Neither passengers nor the general public would be likely to be found on the tops of freight cars.

It may be inferred from some language of the late Chief Justice Cameron in McLauchlin v. Midland R. W. Co., 12 O. R. 418, that he leaned against the right of a servant to recover, but he and his brethren decided the case

HAGARTY

C.J.O.

Judgment. on other grounds and under the statute law as it then HAGARTY existed, prior to the Act of 1888.

C.J.O.

Section 262 provides for the packing of frogs. It has a sub-section, (5), enacting that "the oil cups or other appliances used for oiling the valves of every locomotive in use upon any railway shall be such that no employee shall be required to go outside the cab of the locomotive, while the same is in motion, for the purpose of oiling such valves."

Now, this enactment specially provides for the safety of the servants-to no other class could its direction be applicable.

I suppose the defendants' counsel would urge the expressio unius doctrine here. I do not think it would apply, as it was necessary to name the persons who could possibly be affected.

Then section 289 declares that every company causing or permitting anything to be done contrary to the provisions of the Act, or omitting to do any matters, etc., required to be done, etc,, is liable to any person injured thereby for the full amount of damages sustained by such act or omission.

The main contention of defendants is, that Parliament cannot be held, by implication, as intending to alter the common law as to one servant being barred from recovering against his employer for injuries received through the negligence of a fellow servant.

Even if we adopt this general argument we may find it difficult to apply it to the facts of this case.

The company is directed to have the frogs packed.
The frog in question had never been packed.
There was a lumber siding constructed in August, two
months before the accident, and there was a frog in it.

William Fraser, a section foreman, proved that he put the frog in; that it never was packed. He said he "was taken from one work to another, and was too busy laying temporary tracks down and taking them up all over." We thus see that the company presented this piece of new work for use in the first instance without having it in the state required by law for the protection of anybody.