C.J.O.

This appears to me a default on their part, removed Judgment. from all difficulties arising from the common employment HAGARTY doctrine. They offer a road for use in the beginning without the statutory safeguards. This appears to be emphatically their own default, just as if they commence running trains over a road before the bridges are fully completed or safe.

When the plaintiff, their servant, is required in his duties to work in this new section, I think it is not the neglect or default of a fellow servant that should be regarded, but the positive default of the employers, the company, in presenting or opening that section for use before it was legally fit for use. I look upon the duty of seeing that a track is fit for use and properly safeguarded as required by law before its being used, as a duty which the company must perform at its peril, and that it will not excuse them to prove that they gave directions to have everything done rightly and legally. It might present a different aspect if the portion of road had been all right at its opening the frog duly packed-and that by some servant's neglect it had not been re-packed. The original omission to pack the frog cannot, as I think, be properly excusable as the negligent act of a servant in a common employment with plaintiff.

I think the appeal should be dismissed.

BURTON, J. A. :

There is, no doubt, some ambiguity in the answer to the first question submitted to the jury, but if the defendants wished to have availed themselves of that as an answer in their favour they should, I think, before the jury left the box, have obtained a more explicit reply, and it cannot now, read in connection with the answer to the fourth question, be treated otherwise than establishing that on the whole facts the plaintiff was not guilty of any such contributory negligence as disentitles him to recover.

Upon the main contention that the words "any per

Judgment. son" do not include the very persons for whose protection the section of the statute was presumably passed, I should require very cogent authority for adopting such a con

BURTON
J.A.

struction.

The case referred to in the United States Supreme Court, Randall v. Baltimore & Ohio R. W. Co. 109 U. S. 478, though not binding upon us, would be entitled to our gravest consideration, and if it had decided this point expressly, I must confess, speaking for myself, that I should hesitate a good deal before setting up my own opinion against the unanimous decision of that tribunal; but I feel it is no authority for the contention for which it was cited.

That case decides, (and my dissenting judgment in a case decided some years ago in this Court, Rosenberger v. The Grand Trunk R. W. Co., 8 A. R. 482, will show that I fully agree in that decision), that the provisions of the statute which require the railway company to blow the whistle or ring the bell when approaching a highway, which it crosses, apply only to persons travelling upon the highway so intersected upon the same level, and meeting with injury by actual collision, and not to persons passing over a bridge above the railway or upon the highway at a distance from the intersection, to whom the railway company owes no duty.

It is authority that the words "any person," are not always to receive a literal construction, but should be considered in connection with the entire statute, and that, if when literally construed they would lead to a conflict between different portions of the Act, or to absurd conclusions, they may be restricted or enlarged in their operation so as to cause each part of it to harmonize with every other part.

To the same effect is the decision of the Court of Appeal of the State of New York in Harty v. Central Railway of New Jersey, 43 N. V. (3 Hand) 468; and of the Supreme Court of Rhode Island, in O'Donnell v. Providence, etc. R. W. Co., 6 R. I. 216, and is a canon of construction well understood in England and our own country.

In accordance with this rule of construction, I should Judgment. have held that a servant did not fall within the words, BURTON J.A. "any person," in a case arising under that section for omitting to ring the bell on approaching a highway; but applying the same rule of construction, I should have come to the conclusion that this section in reference to the packing of frogs, was intended primarily for the protection of the very class of which this plaintiff' is one.

Whether, although the action is given by the statute, it would be open to the company to raise the question of common employment, does not arise in this case, and it is unnecessary therefore to express any opinion.

The neglect of duty in this case was that of the principal not of a fellow servant, and I think no case has been made out for our interference with the judgment which the plaintiff has in his favour.

OSLER, J. A. :—

I admit the force of the argument against giving the extended meaning to the words "any person," as used in section 289 of the Railway Act, where the statute gives a right of action to "any person" injured by the act or omission of the company. I agree that it is not to be construed in derogation of the common law rule as to the non-liability of the master for an injury sustained by one servant through the negligence of a fellow servant, unless in the case of the particular act or omission provided against such extended construction is plainly required.

That principle, I think, is very clearly laid down in several of the cases cited: Carle v. Bangor, etc. R. W. Co., 43 Me. 269; Sullivan v. Mississippi, etc. R. W. Co., 11 Iowa 421; Proctor v. Hannibal, etc. R. W. Co., 64 Mo. 112; Randall v. Baltimore & Ohio R. W. Co., 109 U. S. 478. In the last case it was held that a statute containing a provision similar to that in our Railway Act for sounding the whistle or ringing the bell of the engine of a train approaching a highway crossing was

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Judgment. intended for the protection of travellers on the highway, as this Court held in Rosenberger v. Grand Trunk R. W. Co., 8 A. R. 482;-affirmed by the unanimous judgment of the Supreme Court, 9 S. C. R. 311-and that a clause enacting that the railway company should be liable "to any person injured" for all damages sustained by reason of such neglect, did not make the company liable for an injury caused by the negligence of the fireman in this respect, to a fellow servant who had been struck and injured by an engine moving in the railroad yard where he was working.

I refer also to Endlich on Statutes, secs. 127, 128; The Warkworth, 9 P. D. 20, and Kraemer v. Gless, 10 C. P. 470.

In the case at bar, the plaintiff was a switchman in the defendants' employment, and the injury complained of was sustained in consequence of the omission to pack the railway frog between the fixed rails of a switch, as required by section 262 of the Act. I am clearly of opinion that in such a case the plaintiff, though a fellow servant of the person in the employment of the company, through whose negligence the omission to pack the frog occurred, is a person injured" within the. meaning of section 289, and can maintain an action therefor against the company.

I think we are entitled to say that it is a matter of common knowledge that the persons who usually sustain injury through the omission to pack the frog, are the switchmen and brakesmen whose duties in coupling and uncoupling and shunting cars, involve their constant presence on the track at this dangerous place; and therefore that the provisions of sub-sections 2, 3, and 4 of section 262, were introduced and intended by the legislature, so far as frogs are concerned, directly for their protection; and we find them associated with another provision, (sub-section 5), in the same section, for the safety of "employees," relating to oil cups for oiling the valves of a locomotive. An additional argument in favour of this view, is to be drawn from section 273, which expressly forbids every one not connected with the railway or employed by the company to walk along the track thereof, except where the same

is laid across or along a highway, and it is improbable to Judgment. say the least of it, that the legislature would enact that frogs should be packed in favour of trespassers.

An extended construction is, I think, therefore plainly required to be given to the words " any person" in section 289, which will embrace a servant of the company sustaining injury in consequence of an omission to comply with the provisions of section 262; in other words, I think that the latter section was introduced for the benefit of such persons, and therefore that the plaintiff is not hampered by any of the usual restrictions attaching to litigation between master and servant, such as the servant's ignorance and the master's knowledge of the defect.

The object of requiring frogs to be packed evidently was for the protection of a class and not of the public, who, unless they infringe the express prohibition of section 273, incur no danger from the unpacked frog. Were we to yield to the defendants' contention, we should practically reduce the section in this respect to a nullity, and therefore in order to give full effect to its provisions, we must read the words in their plain comprehensive sense and hold that the common law doctrine, or the doctrine established by Priestly v. Fowler, 3 M. & W. 1, is superseded by them.

In this view, I cannot see that the ambiguity in the answer of the jury to the first question is of much importance. The parties should have had it removed at the trial when the jury came in, but assuming in the defendants' favour that they meant to say that the plaintiff ought to have taken notice, or to have known of the defect in the sense of imputing default on his part; yet such a finding is not inconsistent with the absence of contributory negligence, from which by another finding they expressly absolve him. For these reasons I am of opinion that the judgment below is right, and that the appeal should be dismissed.

OSLER

J.A.