Supreme Court Judgments

Supreme Court of Canada

McMullin v. Nova Scotia Steel & Coal Co., (1907) 39 S.C.R. 593

Date: 1907-12-13

Elizabeth McMullin and Others (Plaintiffs) Appellants;

and

The Nova Scotia Steel and Coal Company (Defendants) Respondents.

1907: November 20, 21; 1907: December 13.

Present: Sir Charles Fitzpatrick C.J. and Girouard, Davies, Idington and Duff JJ.

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA.

Negligence—Railway—Breach of statutory duty—Common employment—Nova Scotia Ry. Act, R.8.N.8. (1900) c. 99, s. 251—Employers' Liability Act—Fatal Injuries Act.

Section 251 of the Railway Act of Nova Scotia provides that when a train is moving reversely in a city, town or village the company shall station a person on the last car to warn persons standing on or crossing the track, of its approach and provides a penalty for violation of such provision.

Held, that this enactment is for the protection of servants of the company standing on or crossing the track as well as of other persons.

M. was killed by a train, consisting of an engine and coal car, which was moving reversely in North Sydney. No person was stationed on the last car to give warning of its approach and as the bell was encrusted with snow and ice it could not be heard. Evidence was given that on a train of the kind the conductor was supposed to act as brakesman and would have to be on the rear of the coal-car to work the brakes but when the car struck M., who was engaged at the time in keeping the track clear of snow, the conductor was in the cab of the engine.

Held, Idington J. dissenting, that an absolute duty was cast on the company by the statute to station a person on the last car to warn workmen, as well as other persons, on the track which, under the facts proved, they had neglected to discharge. The defence under the doctrine of common employment was,

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therefore, not open to them. Groves v. Wimborne, ([1898] 2 Q.B. 402), followed (a).

Held, per Idington J., that the evidence shewed the only failure of the company to comply with the statutory provision to have been through the acts and omissions of the fellow-servants of deceased; that the company, therefore, could not be held liable for the consequences under the "Fatal Injuries Act"; that it is, therefore, unnecessary to determine the applicability of the said section of the "Railway Act," as the fellow-servants were guilty of common law negligence which rendered the company. liable but only by virtue of and within the limits of the "Employers' Liability Act." (a).

APPEAL from a decision of the Supreme Court of Nova Scotia reversing the judgment at the trial in favour of the plaintiffs.

The facts of the case are sufficiently stated in the above head-note and in the judgments published herewith.

The trial judge gave judgment for the plaintiffs and assessed the damages at $3,800. The court en banc reversed his judgment and dismissed the action holding that plaintiffs could not recover under "The Railway Act" as the negligence causing the accident was that of a fellow servant of the deceased and that the statement of claim did not cover common law negligence. The plaintiffs appealed to this court.

Mellish K.C. for the appellants. An absolute duty is cast upon the company by section 251 of "The Railway Act" and they cannot escape liability by transferring to their employees on the train the obligation of performing it. Curran v. Grand Trunk

(a) These holdings were settled by Davies and Idington JJ. respectively.

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Railway Co.[1]; LeMay v. Canadian Pacific Railway Co.[2].

And plaintiffs are entitled to succeed under "The Employers' Liability Act" which recognizes Lord Campbell's Act and excludes the doctrine of common employment.

The statement of claim sufficiently sets up this ground of negligence. See Ruegg on Employers' Liability (5 ed.) p. 121 and form at pp. 362-3. And it may be joined with another or an alternative claim. Ruegg, p. 362; Curran v. Grand Trunk Railway Co.

Newcombe K.C. for the respondents. The deceased was guilty of contributory negligence. He knew that the train might be expected at any moment and the engineer was justified in assuming that he would be on his guard. See Aerkfetz v. Humphreys[3]; Crowe v. New York Central and Hudson River Railway Co.[4]; Dominion Iron & Steel Co. v. Oliver[5].

Section 251 of "The Railway Act" does not apply to the case of a company injuring one of its own employees. See Labatt, Master and Servant, secs. 637-8. Even if it does we can invoke the doctrine of common employment. Labatt, sec. 638. Smith, Master and Servant, ed. 1904, p. 225.

Mellish K.C. for the appellants

Newcombe K.C. for the respondents

The Chief Justice agreed with Davies J.

Girouard J. concurred in the judgment allowing the appeal.

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Davies J.—This action was one brought under what is known as "Lord Campbell's Act" by the widow and infant children of one John McMullin, an employee of the defendant company, to recover damages arising out of the death of the said employee while engaged at his work on the railway track of the company.

The defendant company owns and operates a railway between their works at Sydney Mines and their shipping piers at North Sydney, N.S., and such railway runs through the town of North Sydney.

The railway being entirely a provincial one is governed as to its construction, management and operation by the provincial statute, B.S.N. S. ch. 99, intituled "The Nova Scotia Railway Act."

The 251st section of that Act is as follows :—

Whenever any train of cars is moving reversely, in any city, town or village, the locomotive and tender being in the rear of such train, the company shall station on the last car in the train a person who shall warn persons standing on or crossing the track of such railway, of the approach of such engine, tender and train; and for any violation of any of the provisions of this section, or of any of the three sections next preceding, the company shall be liable to a penalty of one hundred dollars.

Section 280 of the same Act is as follows :—

Every company * * * causing or permitting to be done, any matter, act or thing contrary to the provisions of this chapter * * * 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 * * * .

The main and substantial question raised and argued before us was as to the true construction of section 251.

The trial judge held that the section did apply to railway servants as well as others not being so, and

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cast an absolute duty upon the company for damages arising from the non-performance of which the company was liable.

The Supreme Court of Nova Scotia reversed the judgment of the trial judge, holding that even

assuming the moving of the cars through the town in reverse order, stationing a man on the last car is analogous to and is governed by the same principle as the failure of a defendant to supply some permanent protection to machinery, such as the fence or guard required by statute in such a case as Groves v. Wimorne[6]

still in the case at bar,

all the negligent omissions, including the stationing of a man on the forward car to give the necessary warning, were those of fellow workmen of the deceased, and even if the company would be liable on proof of a system on their part of running their trains without these necessary precautions * * * there is nothing in the least degree approaching the proof that would be required to support such a case.

I am quite unable to agree with the conclusions reached by the court below, either as to the application of the doctrine of "common employment" or as to the proper inferences to be derived from the very meagre evidence given at the trial.

With respect to the proper construction to be given to section 251, I am unable to agree with the contention that the section only applies to persons not railway servants, and, as to them only "while standing on or crossing the track of the railway" at a highway crossing.

There does not appear to me to be any justification arising either from the language of the section itself or from its position in the Act and its relation to its context which would justify the courts in importing such limitations into it. Nothing is said in the section with respect to a "highway crossing."

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What is said is that "persons standing on or crossing the track of such railway" within the limits of a town, city or village, shall be entitled, so far as trains moving reversely are concerned, to have a certain specified precaution and warning observed. It does seem to be an arbitrary and unreasonable construction to exclude workmen from the benefit of such a prudent and beneficial section as this. In fact, it would seem rather more necessary for the workman's protection than for that of the outside public. Business might occasionally, no doubt, take some of the general public on or across these railway tracks within cities, towns or villages, but, apart from public highways, the presence of any of the general public would be a rare occurrence on these tracks.

On the other hand, the duties of many of the workmen, trackmen, switchmen, etc., require them to be "on or crossing the track" frequently, and it would seem reasonable to conclude that the section was enacted as much, if not more, for their benefit than for the benefit of the small section of the general public who would legally go "on or across the track." Of course, the section is not for the benefit of trespassers and they, I assume, not to be within it.

The section applies in terms to any and all parts of the company's track within the city or town, and I see as little reason for excluding from the section the grounds of the company itself within such city as the workmen of the company.

The section is general in its terms. Its object evidently was the protection of "persons on or crossing the track" within the town's limits from the damages arising from a train of cars running reversely, and I entirely fail to find any justification for confining its

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protection to persons crossing the tracks at a highway and excluding others who legally and properly are on or crossing the track for business or other purposes, even within the company's own grounds, or others who, being the company's workmen, are on or crossing the track in discharge of their duty.

That being so, what are the facts proved here?

The deceased was a switchman and was engaged, at the time of his death, in the midst of a snow storm, in keeping the switch clear of snow and ice. He was run down and killed by a train of cars running reversely. Not a scintilla of evidence is given as to any contributory negligence on his part, and it is admitted that no person was on the last car ahead of the engine to warn persons of its approach. That being so, the statutory duty of the company was violated.

No evidence whatever was called for the company. No attempt to shew that, as a company, it had tried to discharge its duty by "stationing a man on this last car."

The fireman stated :—"We had no book of rules at that time that I know of." And this evidence is neither contradicted nor explained, but we are asked to assume, from a casual statement of the same man, that

the conductor (who as a fact was in the cab), is supposed to be on the car ahead of the engine;

that the conductor's orders and the system under which the railway was operated required him to be there.

I am not able to draw from this casual statement, the conclusion that the company had, in the words

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of the statute, "stationed a man on the last car on the train." As a fact, no man was so stationed. If the company desired to raise the defence of common employment, they would be bound, in my judgment, to prove either that the man was stationed there to warn people and by his own carelessness and negligence had failed to do so, or, at least, that it was, by their rules or orders, the duty of some one to have been there to carry out the statutory duty, and that his absence was not in any way owing to their negligence or default, but to the deliberate breach of duty of some workman charged with such duty.

Then, if they desired to rely upon the qualifying words, which Williams L.J. added to his concurrence with the other members of the appeal court in the judgment of Groves v. Wimborne[7], they would stand in a position at any rate to urge the application of the doctrine so qualified to the special facts proved.

As for me, I think the law as laid down by the appeal court in Groves v. Wimborne7, applicable to this case and binding. The section being applicable to the place where the man was killed and to the man, he being within the class of persons intended to be protected, although a workman of the company, there arose under it a statutory obligation imposed upon the company in the interests of the workmen's safety which they failed to discharge and for the consequences of which failure they are liable. Under the facts as proved it was not open to them to invoke the doctrine of common employment, even if such a doctrine could, in any case, be invoked to relieve a company from the consequences following the failure to

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observe or conform to a statutory obligation towards a party injured.

These conclusions relieve me of any necessity of considering the other branch of the case, namely, the plaintiff's right to recover under "The Employers' Liability Act." As nothing was said respecting the amount of the damages awarded by the trial judge, I have assumed them to be right.

The appeal should be allowed with costs and the judgment of the trial judge restored.

Idington J.—I agree that this appeal should be allowed but concur in the opinion of the court below that the action, so far as rested on "The Fatal Injuries Act" alone, is not maintainable. It needs also the support of "The Employers' Liability Act." There was common law negligence, and hence, in my view of the evidence, I cannot find that it is necessary to pass any opinion on the question of the appellants' right to rely only or at all upon the statutory provisions invoked from "The Nova Scotia Railway Act." My reason for that is that I infer from the evidence that the men in charge of the train neglected what had been their accustomed observance of the statutory duties, and that I cannot impute the breaches thereof to the respondents, as part of their system, or at all, except through the misconduct of their servants, who were also the fellow servants of the deceased.

The driver of the engine says:—

The conductor was both brakesman and conductor * * * The brake on the car at that time was on its rear and there is where he would likely be.

To the Court.—If it had been a fine day, the brakeman would have been there. He was not there because it was storming too badly.

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Boutiler says:—

The conductor was in the cab *- * . The conductor is supposed to be on the car ahead of the engine * * *

A man would require to be on the car to operate its brake on that occasion. There was no man on the car that day up to the time of the accident. If we had a brakesman that day, his position would have been on the coal car. We could only stop the car through stopping the engine. We had no book of rules at that time I knew of.

And, in cross-examination;

It was a shunting engine. At that time the crew usually consisted of three and the conductor handled the brakes.

And, on this occasion, the three men were there, but evidently the conductor-brakesman, though he had only one car to look after, neglected his duty as such. He had died before the trial and hence above only evidence obtainable, of the sphere of duties assigned, unless the respondents' manager and secretary had been brought to prove such from by-laws or otherwise expressly. Such, certainly, has not been the practice at trials of this sort and was not, in face of the foregoing evidence, in my opinion, incumbent on the respondents here.

At first, I was disposed to attach some importance to the statement as to want of a book of rules as indicating a neglect of duty on the part of the company. The statement, as appears above, cannot, however, I think, fairly be so read as to imply of necessity that the company never had delivered the men such rules, or given proper instruction or ever sanctioned the neglect of duty such as is apparent on this occasion. Their man was there to comply with the statute as was also the bell, and, even if the statute can be interpreted so as to enure to the benefit of "the appellants, it cannot, in this view, get rid, under the circumstances, of the doctrine of common employment.

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The action cannot, therefore, in my opinion, be maintained without the support that "The Employers' Liability Act" gives. It is urged by the respondents that this cannot be given effect to in this action, and so the court below seems to have assumed and held for reasons I fail to find sufficient.

As to the statement of claim, I see no insuperable difficulty. Paragraph four seems framed as if intended to cover the cases under section three of "The Employers' Liability Act," and paragraph five seems framed as if intended to meet the case of an action resting upon a breach or breaches of the statute there invoked, and which might, if the evidence got the case past the difficulty of the common employment doctrine, support an action under

"The Fatal Injuries Act" itself without regard to what precedes.

Such are the. cardinal features of this statement of claim. On its face are presented two cases. Then this becomes clearer when we consider the statement of claim in its first three paragraphs and find that it shews the deceased to have been a servant of the respondents in the very same service as those whose negligence is complained of in the fourth paragraph.

How could any one read such a statement of claim and not see thus suggested a claim that must rest on "The Employers' Liability Act" for support?

The pleading, in that regard, is neither lucid nor precise nor concise, but it must mean nothing if it does not point to an intention to found the first part of the statement of claim on that Act. It, indeed, jumbles together the provisions thereof by using, in a very undesirable way, some of the language used in each of the three later sub-sections of section three.

The statement of claim, as a whole, covers at least

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quite enough to prevent us from holding that it so absolutely fails to disclose any ease within "The Employers' Liability Act," that the trial judge would have erred if he had found, on the facts, such a case and entered judgment thereunder.

I think that is a fair test of the possible meaning of the statement of claim here. If, down to the trial, respondents could pretend they were misled, and, therefore, did not plead want of notice, a motion to amend and set up alternative claims was made and allowed. This amendment could mean nothing short of claiming, as the meaning of the pleading, what I have suggested above as its intention and possible meaning. The learned trial judge might well have refused this amendment unless and until the whole pleading had been put in less embarrassing form.

The refusal of the learned trial judge to put plaintiff to an election, confirms my opinion, not only that it was possible either case might be shewn or appear, but that the case proceeded with everybody concerned understanding that the case might be found in either way as the facts and law applicable should disclose later.

The necessity for particulars of claim (so much relied on below) is just as great under the one Act as under the other—only there is there prescribed a slightly different mode of evincing them.

I cannot see that either was adopted in this suit. Mere forms these are in either case; and can be supplied at any time by amendment as can also the pleadings. No one should be driven to another action for any of these things.

The questions of the cause of the death, the legal

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relations of the parties concerned in that and the consequences thereof were all threshed out at the trial.

There is nothing to prevent us from acting on section 54 of "The Supreme Court Act" and so amending, within that and other sections, as the court below also could have done, and giving judgment accordingly, unless we should see that the respondents are entitled to say they were misled and now are, therefore, entitled to plead want of notice and claim a new trial.

I think the fair inference, from the correspondence produced, is that notice was given and I infer that all objections to it, if any possible, were waived; and, upon some features, the correspondence presents, but which I need not enlarge upon, there existed good reasons for the waiver.

I think, therefore, the appellants entitled to have the case maintained and disposed of on the merits; and claim upheld by whatever law it can be rested upon.

Now as to the merits of the appellants' case; the habitual compliance with the enactments requiring outlook and ringing of bell; even if such statutes are not such as appellants' action can rest upon; when habitually observed, as I have inferred they were, and as, in law, they may fairly be presumed to have been so observed, created a condition of things that the deceased was entitled to have relied on, as likely to continue.

The view of such a matter has been so well presented by Lord Esher, in Smith v. The South Eastern Railway Co.[8] in appeal at pages 182 et seq., that I refer thereto and adopt his reasoning as applicable, and rely on it here.

More than that, I am prepared to hold, and do

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hold, that an engine merely used for shunting in a railway yard, such as this was, and especially running reversely, requires in its management a high degree of care, and that, when the ringing of a bell or keeping of an outlook or possibly either on such occasions, as reason and due regard to the safety of those in the yard may reasonably require, has been abandoned, he, who being in charge or control, has thus abandoned such safeguards, without adopting some equivalent, quite as efficient, has been guilty of that sort of negligence that section 3, sub-section (e) of the "Employers' Liability Act" refers to.

Such was I take it, too clear for argument, the case disclosed by the facts before us.

This opinion of the law, apart from statute, is clearly in accord with the principle of the common law and what was given expression to by Sir Henry Strong, the Chief Justice of this court, in the case of The Canada Atlantic Railway Co. v. Henderson)[9], at page 636, where he said :—

Further I think it right to say that on this evidence (that the bell did not ring, that the speed was over six miles an hour, and that a flagman, stationed there, did not give warning), we should be justified in holding that there was common law negligence, as in the case of The St. Lawrence and Ottawa Railway Co. v. Lett[10]

and, as on the same occasion, the late Mr. Justice Gwynne also said:—

I am of opinion that if the ringing of the bell would prevent an accident to a person crossing a highway, there is an obligation, at common law, to ring it,

and, with what the late Chief Justice of Ontario, Sir George Burton, said, in the case of Hollinger v. The Canadian Pacific Railway Co.[11].

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Thus I find, besides the case of the Canada Southern Railway Co. v. Jackson[12], not cited, but itself quite sufficient to meet the allegation of contributory negligence, the element of expectation, on the part of the deceased, that he might ring the bell or see the outlook, when relied upon by Mr. Justice Meagher, in connection with the question of contributory negligence, was fully justified. And thus I find further the amplest legal ground for maintaining the action and giving damages for $1,500, without relying on the Nova Scotia Railway statute, as enuring to the appellants' benefit. And as I have already said, the breaches of that statute, not being shewn to be the direct act of the company, or of a system adopted by it, but arising from clear neglect of duty, on the part of a fellow servant, can give no higher right that I indicate here.

I would allow the appeal with costs of appeal and costs of suit in all courts below, save so much thereof as may have been occasioned by the striving of the appellants to maintain their right to damages exceeding the limit of $1,500, and enter judgment for that sum to be properly apportioned, but, as the majority of the court take another view, say nothing further anent the same.

Duff J. agreed with Davies J.

Appeal allowed with costs.

Solicitor for the appellants: D. L. McPhee.

Solicitor for the respondents: R. H. Butts.