The judge reserved judgment on the findings until after argument, and then rendered the following opinion:-FALCONBRIDGE, J.-Mr. Shepley's able and ingenious argument merits more consideration and more elaborate treatment than I am able to give it in view of the limited time at my disposal. It is of the last importance that the parties should be able, if they so desire it, to move against this judgment at the next sittings of the divisional court. With much doubt and hesitation, I refuse to give effect to his contention that the ef fect of § 289 of 51 Vic., chap. 29, (D.) is merely to declare the want of packing to be an act of negligence and disregard of duty on the part of the defendants, and that a servant must otherwise bring himself within the rules of the common law before he can recover. If I am right in this, it is not necessary to decide whether the knowledge of a section foreman is notice to the company. I enter judgment for the plaintiff with full costs.

From this judgment the defendants appealed to the divis ional court.

Shepley for the appeal.

Delamere and Frank Keefer, contra.

Facts.

BOYD C.-Le May now aged twenty-five years, went into the service of the Canadian Pacific Railway in December, 1887, and was promoted to the position of switch foreman in July, 1888. On 22 May, 1888, the Railway Act, 51 Vic. chap. 29 (D.) was passed, which provided for the packing of railway frogs. On 6th August the side track was constructed near Port Arthur, on which the accident occurred on 20th October, whereby the plaintiff lost his foot by reason of the omission of the defendants to comply with the statute in this particular. Sec. 262 gives directions for packing frogs; and sec. 289 provides that the company which omits to do anything required to be done by the company (i. e., by that statute) is liable to the person injured thereby for the full amount of damages sustained by such omission. The plaintiff's action is founded on a statutory breach of duty on the part of the defendants, by which he has been maimed for life.

66 Any per

It was argued that he was not, being a servant of the company, within the meaning of the statute. To that may be answered the plain meaning of the words which extend to "any person injured." Borrowing the son" injured language of Locke, "We must consider what person stands for, which I think is a thinking, intelligent being. It is ordinary knowledge, which even judges must not forget in the presence of a statute, that of all persons in the community those most exposed to

-Construc

tion of

phrase.

to danger from the fatal frog, are the track and switchmen of the railway. To leave these men out of the benefit of the act, would be to minimise its scope and violate one of the main canons of interpretation laid down by the legislature, whereby all acts are deemed remedial and to be liberally construed; R. S. C. chap. 1, sec. 7, sub-sec. 56.

of condition

It is next urged that the answer made by the jury to the first question left to them, disentitles the plaintiff to recover. This question was, "Did the plaintiff before the happening of the accident, have notice or knowl. Finding of edge, or ought he to have had notice or knowledge jury-Notice that the frog was not packed? Answer-We be- of frog. lieve he did not have notice, and should have had notice." The defendants' counsel says this means he is to be affected with notice of the state of the frog, because of his employment and his observation of the place. I should take the very opposite meaning out of the words-namely, that no notice was given to him of the frog being unpacked, and that notice should have been given to him. That is also in harmony with the answer of the jury to the fourth question, that he was not guilty of contributory negligence. But assume that it means that notice of the danger is to be imputed to him, that would not prevent his recovering so long as he was not himself negligent. As expressed by Lord Justice BOWEN in Thomas v. Quartermain, 18 Q. B. D., at p. 697; "The plaintiff's knowledge of the danger is not conclusive. Obviously, such knowledge may have even led him to exercise extraordinary care.

The hope of the defendants based on this apparently ambiguous finding is dissipated by the holding of WILLS, J., in Osborne v. London and N. W. R. Co., L. R., 21 Q. B. D. 220, 223; 35 Am. & Eng. R. Cas. 483. He said, "Where the existence of negligence on the part of the defendants, and the absence of contributory negligence on the part of the plaintiff, are specifically found,* if the defendants desire to succeed. on the ground that the maxim volenti non fit injuria, is applicable, they must obtain a finding of fact that the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it." There is here no evidence which would warrant such a finding.

The last defence urged is the standing one of contributory negligence. But this was left fully and fairly to the jury, and they have disposed of it adversely to the company, and it cannot be said that there is not suffi. Contributory cient evidence to support their disposition of this defence. While under orders from the company to take charge of cars loaded with various freight so as to place them

negligence.

at their proper places for unloading, he had to detach or uncouple some of these loaded cars. He found the pin to be stiff and could not pull it out from the side of the car, and so stepped in with one foot between the cars to get a better pull, and while working at the pin, his foot went into the frog and was caught. The cars were moving backwards slowly, inch by inch, as it were, and in spite of his efforts to get free, they shoved him forward, and one wheel went over his foot. He was familiar with the manner of uncoupling cars and acted on this occasion in the usual way. He knew there was a frog at the place in question, but did not know whether it was filled or not. The plaintiff says the company expect men to uncouple cars while they are on the move, under pain of being discharged if they do not adopt this plan. The company knew of how the work of coupling was usually and generally done, and should have been solicitous to lessen the danger as much as possible by observing the directions of the statute. The plaintiff was a competent person to do this work, and as the car was moving so very slowly he felt himself evidently master of the situation, and would have been so but for the defendant's neglect to make the frog perfectly safe. This omission of duty on the defendant's part, appears to me to have given rise to the accident, and to have been its immediate cause, and I find no good reason for disturbing the verdict and judgment in the plaintiff's favor.

Case stated.

FERGUSON, J.-The plaintiff was a switchman in the employ ment of the defendants. It is alleged that the accident which gave rise to the action occurred by reason of the negligence of the defendants in not having a certain space at a frog in their railway track filled with packing as required by the Railway Act, 51 Vic. chap. 29 (D). It is not now asserted that this space was packed as required, or at all. The fact is undisputed that it was not packed. The plaintiff sustained the injury complained of while in the performance of his duty as such employe of the defendants, and at this place he had his foot cut off or partly cut off by a wheel of one of the defendant's cars, and the jury have awarded him $2,500 damages.

statute.

The 3rd sub-section of section 262 of the Act provides that the space behind and in front of every railroad frog or crossing, and between the fixed rails of every switch Provisions of where such spaces are less than five inches in width, shall be filled with packing up to the under side of the head of the rail. The 289th section of the same Act provides that "every company * * causing or permitting to be done, any matter, act, or thing contrary to the

* *

* *

provisions of the Act or the special Act, or omitting to do any matter, act, or thing required to be done on the part of any such company, is liable to any person injured thereby for the full amount of damages sustained by such act or omission," etc. The plaintiff had been for some months employed at the place where the accident happened, and had had charge of a gang of men there.

Several questions were submitted to the jury, which were as follows:-1st. Did the plaintiff before the happening of the accident, have notice or knowledge, or ought

submitted to

he to have had notice or knowledge, that the frog Questions was not packed? The answer of the jury is: "We jury. believe he did not have notice, and should have had notice." 2nd. Did the accident happen to the plaintiff by reason of the frog not being packed in accordance with the statute? The answer is: "We believe that it did." 3rd. Did the plaintiff receive the injuries while in the discharge of his duties, as a servant of the defendants, and in consequence of the discharge by him of such duties? The answer, is: "We believe he received the injuries in the discharge of his duties, and in consequence of them." 4th. Was the plaintiff guilty of contributory negligence? The answer is: "We do not believe that he was."

"Any person

It was contended that the words, "Any person injured thereby" in the 289th section aforesaid, do not apply to or comprehend an employe or servant of the railway company; but I cannot perceive any good ground for this contention, and I agree in the reasoning and conclusion of the chancellor in his judgment in regard to this element of the case.

injured."

dition of frog.

There was much contention at the bar respecting the meaning of the answer to the first question, that is: whether the jury meant by the latter part of it, "and should. have had notice," that the plaintiff should have Notice of conbeen notified by the defendants that the space in question was not packed; or that the plaintiff having been for some considerable time engaged or employed in the performance of his duties as the defendants' servant at the place, should have himself known that the space in question was not packed as required. I do not see that it matters so much so far as the result of the case is concerned, which of these readings is given to this answer of the jury; for, let it be assumed that the one least favorable to the plaintiff is adopted, then I apprehend notice that the space was not packed as required will be imputed to the plaintiff. The second finding is that the accident occurred by reason of the space not being packed; and there is no doubt that this finding is well supported by the evidence.

negligence.

The fourth finding is, that the plaintiff was not guilty of contributory negligence. As appears by the opinions of all the judges in the case, Thomas v. Quartermain, 18 Contributory Q. B. D. 685, this notice imputed to the plaintiff (or even actual knowledge of the fact if such had been the case), is not conclusive against the plaintiff on the question of contributory negligence. In that case the learned judges were not all of the same opinion, but upon this particular point they seem to agree. The case was under the provisions of a statute different from the act relied on in the present case; nevertheless, the discussion and the authorities referred to upon this particular branch or subject are in point here. Several cases are referred to in the judgments, and so far as I am able to perceive from these, from the opinions of the learned judges, and from some other cases, it is not unsafe to state the law upon the point as laid down in the case of Clarke . Holmes, 7 H. &. N. 937, namely, that knowledge is only a fact in the case to be taken into consideration by the jury, with all the other facts and circumstances, in determining the question whether the plaintiff had himself helped to bring about the accident, in respect of which he seeks to charge the defendants.

The jury knew what they intended by the part of their answer-that is, the answer to the first question; and if they meant, as I have assumed, against the plaintiff, that by reason of his employment at the place, and being so long engaged there, he ought to have known what the fact really was; they must have taken this into account when they were considering what their finding should be on the issue regarding contributory negligence, and their finding upon this issue, I think, cannot be disturbed here. I agree with the chancellor in his way of looking at the evidence relating to this issue, and I think there is certainly evidence on which a jury might reasonably find, as the jury have found upon this issue, and such being the case, we cannot, according to the latest authorities on the subject, disturb the finding.

Then there being a statutory duty resting upon the defendants to have the space in question filled or packed, the accident having occurred by reason of this duty having been neglected-see the second finding-the plaintiff being a person within the meaning of the words "any person injured thereby" in the 289th section, and not being guilty of contributory negligence, I do not see that his case at the present time would be any better or stronger if the other reading were given to the latter part of the answer to the first questionnamely, that he should have been notified by the defendants, and I do not see how we are to disturb the verdict the plaintiff has obtained.