Canadian Pacific Railway Co. v. Parent

Canadian Pacific Railway Co. v. Parent
Collection
Supreme Court Judgments
Date
1915-03-15
Report
(1915) 51 SCR 234
Judges
Fitzpatrick, Charles; Davies, Louis Henry; Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander; Brodeur, Louis-Philippe
On appeal from
Quebec
Subjects
Transportation
Decision Content
Supreme Court of Canada
Canadian Pacific Railway Co. v. Parent, (1915) 51 S.C.R. 234
Date: 1915-03-15
The Canadian Pacific Railway Company (Defendants) Appellants;
and
Leosophie Parent and Joseph Chalifour (Plaintiffs) Respondents.
1915: February 11, 12; 1915: March 15.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff, Anglin and Brodeur JJ.
ON APPEAL FROM THE COURT OF KING’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.
Railways—Shipping contract—Carrying person in charge of live stock—Free pass—Release from liability—Approved form—Negligence — Action by dependents — Conflict of laws — “Railway Act;” R.S.C., 1906, c. 37, s. 3.40.
The shipping bill for live stock, to be carried from Manitoba to its destination in the Province of Quebec, was in a form approved by the Board of Railway Commissioners and provided that, if the person in charge of the stock should be carried at a rate less than full passenger fare on the train by which the stock was transported, the company should be free from liability for death or injury whether caused by the negligence of the company or of its servants. C. travelled by the train in charge of the stock upon a “Live-Stock Transportation Pass” and signed conditions indorsed in English thereon by which he assumed all risks of injury and released the company from liability for damages to person or property while travelling on the pass, whether caused by negligence or otherwise. While the train was passing through the Province of Ontario, an accident happened through the negligence of the company’s employees and C. was killed. In an action by his dependents, instituted in the Province of Quebec, it was shewn that C. could neither read nor write, except to sign his name, and that he only understood enough English to comprehend orders in respect of his occupation as a stock-man; there was no evidence that the nature of the conditions was explained to him.
Held (Fitzpatrick C.J. dissenting), that the railway company was liable for damages in the action by the dependents. Per Davies, Idington, Duff and Brodeur JJ. (Fitzpatrick C.J. and Anglin J. contra), that, as C. could not have known the nature of the conditions or that they released the company from liability, and the company had not done what was reasonably sufficient to give him notice of the conditions on which he was being carried, the company was liable in damages either under the law of Ontario or that of Quebec.
Per Anglin J.—Although no action would lie in Ontario unless the deceased would have had a right of action, had he survived, and such an action would have been barred there by the contract signed by him, nevertheless, in Quebec, where there is no such rule of law, the action would lie, though the wrongful act had been committed in Ontario, as it was of a class actionable in Ontario. Machado v. Fontes ((1897) 2 Q.B. 231) applied.
Section 340 of the “Railway Act,” R.S.C., 1906, ch. 37, provides that “no contract, condition, * * * or notice made or given by the company impairing restricting or limiting its liability in respect of the carriage of any traffic shall * * * relieve the company from such liability unless such class of contract * * * shall have been first authorized or approved by order or regulation of the Board. (2) The Board may, in any case or by regulation, determine the extent to which the liability of the company may be so impaired, restricted or limited.” The Board of Railway Commissioners made an interim order permitting the use by the company, until otherwise determined, of the shipping form used, but did not expressly authorize the form containing the conditions signed by deceased.
Held, per Fitzpatrick C.J. and Davies and Anglin JJ. (Idington, Duff and Brodeur JJ. contra), that the contract signed by deceased was one of a class of contracts authorized by the Board.
Per Duff J.—The contract signed by deceased could not have the effect of limiting the liability of the company in respect of death because it was not in a form authorized or approved by the Board of Railway Commissioners and there had been no order or regulation made by the Board expressly determining the extent to which the company’s liability should be impaired, restricted or limited as provided by sub-section 2 of section 340 of the “Railway Act.”
Judgment appealed from, affirming the judgment of the Superior Court (Q.R. 46 S.C. 319) affirmed.
APPEAL from the judgment of the Court of King’s Bench, appeal side, affirming the judgment of the Superior Court, District of Quebec[1], by which the plaintiffs’ action was maintained with costs.
In the circumstances stated in the head-note, one Joseph Chalifour was killed while travelling as a stock-man, in charge of live stock, on a train of the company, defendants, in a railway accident which happened at Chapleau, in the Province of Ontario, and the action was brought by his dependents in the Province of Quebec to recover damages as compensation for the injury. The case was tried by a judge, without a jury, and judgment was entered in favour of the plaintiffs for $5,000 damages. This judgment was affirmed by the judgment now appealed from.
G. G. Stuart K.C. for the appellants. The judgment appealed from is erroneous because (1) there was no evidence to justify disregard of the release contained in the pass signed by deceased on which he was travelling; (2) the law of Quebec cannot apply to a right of action resulting from tort committed in Ontario; (3) respondents’ rights, if any, were statutory rights accruing under the law of Ontario; (4) the release was equally effective to bar respondents’ right of action, whether construed according to the law of Quebec or that of Manitoba, where the contract was signed by deceased; (5) the deceased could not have maintained an action, had he survived, and, consequently, the respondents cannot recover; (6) the contract signed by deceased was a release of all claims whether arising from death or injuries. We rely upon the following authorities: Lafleur, “Conflict of Laws,” p. 198, and authorities cited; Storey, “Conflict of Laws,” (8 ed.), para. 625, n. (a); Dicey, “Conflict of Laws,” p. 659, and American notes, specially at p. 699; 8 Laurent, “Droit Civil International,” Nos. 9, 10, 11; Robinson v. Canadian Pacific Railway Co.[2]; Read v. Great Eastern Railway Co.[3]; Griffiths v. Earl of Dudley[4], at p. 365; Glasgow and London Ins. Co. v. Canadian Pacific Railway Co.[5]; Conrod v. The King[6], per Anglin J., at p. 585; British Columbia Electric Railway Co. v. Turner[7], per Davies J., at p. 479, Idington J., at p. 484, and Duff J., at p. 491; Williams v. Mersey Docks and Harbour Board[8]; Parker v. South Eastern Railway Co.[9]; Bergevin v. Quebec and Lake St. John Railway Co.[10]; Robertson v. Grand Trunk Railway Co.[11]; Mercer v. Canadian Pacific Railway Co.[12]; Sutherland v. Grand Trunk Railway Co.[13]; Provident Savings Life Assurance Society v. Mowat[14], at p. 155; The Queen v. Grenier[15], per Strong C.J., at p. 51; Glengoil SS. Co. v. Pilkington[16].
In England, prior to “Lord Campbell’s Act,” there was no recourse in damages for the death of a human being. In Baker v. Bolton[17] Lord Ellenborough held: “In a civil court the death of a human being could not be complained of as an injury.” And this case was followed and approved in Osborn v. Gillett[18]; Clark v. London General Omnibus Co.[19]; Jackson v. Watson & Sons[20]. R. C. Smith K.C. and Savard for the respondents. The form of the contract indorsed on the pass in question was never authorized or approved by the Board of Railway Commissioners pursuant to section 340 of the “Railway Act.” The form of the shipping bill, which had been so approved, was a separate and distinct contract from that which was signed by deceased, the parties were not the same and there was no consideration for the agreement between deceased and the company; it was nullum pactum, according to the law of Quebec; arts. 982 to 989 C.C.; the reduction in the fare benefited only the shippers; Robinson v. Grand Trunk Railway Co.[21], per Latchford J., upheld by the Supreme Court of Canada[22]. Deceased was an illiterate man and signed the conditions on the pass in circumstances in which he did not give a full and valid consent to the release; the effect of the conditions was not explained to him. The shipping bill was never seen or signed by him nor was it read to him. The case of “death” is not mentioned in the conditions of the pass, it merely refers to accident or damage to person or property. The separate and distinct right of action of the widow and children, under article 1056 C.C. cannot be barred by an act of deceased: Robinson v. Canadian Pacific Railway Co.[23]; Miller v. Grand Trunk Railway Co.[24]; 1 Laurent, 89-91; 1 Migneault, 80; Félix, “Droit International,” p. 53; Bullenois, vol. 2, p. 467; and the law of the domicile governs. See The Queen v. Doutre[25].
G. G. Stuart K.C. for the appellants.
R. C. Smith K.C. and Savard for the respondents.
The Chief Justice (dissenting).—This is an appeal from the Court of King’s Bench, Quebec, affirming the judgment of the Superior Court by which the widow and children of one Jos. Chalifour recovered $5,000 from the railway company for his death. The accident occurred at Chapleau, in the Province of Ontario. The deceased was travelling on a pass issued by the defendant company to the plaintiff’s employer, the Gordon Ironsides Co. He was engaged in the shipment of cattle; the train upon which he was being carried met with an accident through the negligence of the company’s servants which resulted in his death. The defence turns in large measure upon the effect of the contract between the Gordon Ironsides Co. and the railway company which provided that, where a pass was issued, the company should be freed from all liability whether caused by the negligence of its servants or otherwise.
The contract was made in Manitoba and the court below held that as no evidence was given respecting the law in Manitoba, it must be assumed to be the same as in the Province of Quebec and the case was, therefore, governed by the Quebec law.
In Quebec the wife and children have an independent cause of action (art. 1055 C.C.). But the death of the husband and father must be caused by an “offence or quasi-offence” committed by the party proceeded against. In other words, delict is the foundation of the right of action.
It has been recently said that negligence, to be negligence, must be a breach of duty and unless there was a breach of duty to take care, there was no negligence. Here the deceased was, at the time of the accident, travelling on the railway on a pass issued by the company respondent under statutory authority, and a condition of that pass was, that the deceased assumed
all risk of accident or damage to person or property and that the company should be free from all liability in respect of any damage, injury or loss caused by the negligence of the company, or its servants or employees or otherwise howsoever.
This pass was issued by the company in connection with a “special live stock” contract approved of by the Board of Railway Commissioners and entered into by the employers of the deceased, containing this clause:—
In case of the company granting to the shipper or any nominee or nominees of the shipper, a pass or privilege less than full fare, to ride on the train in which the property is being carried, for the purpose of taking care of the same while in transit, and at the owner’s risk as aforesaid, then as to every person so travelling on such pass, or privilege less than full fare, the company is to be entirely free from liability in respect of his death, injury or damage, and whether it be caused by the negligence of the company, or its servants or employees or otherwise howsoever.
The legislation giving the Board of Railway Commissioners power to order and approve of such a contract was fully referred to and discussed in the case of Robinson v. Grand Trunk Railway Co.[26], disposed of by this court a short time ago and in which I had the misfortune to differ from the majority of my colleagues (vide secs. 26, 30, 31, 284, 340, R.S.C. ch. 37). The following sections of the same chapter should also be considered: 55, 322, 327, 339.
The order of the Board authorizing the railway companies to use the form of “live stock contract” above referred to was duly published as required by the “Railway Act” (sec. 339), and thereafter had a like effect as if enacted in that Act (sec. 31). The terms of the pass on which the deceased was travelling were binding on all the parties who presumed to avail themselves of the privileges which that pass conferred.
This case is, in my opinion, distinguishable on other grounds from such cases as Henderson v. Stevenson[27], and Parker v. South Eastern Railway Co.[28], to which we were referred by respondent at the argument. In those cases the conditions relied upon were contained in an ordinary transportation ticket in common form, and it did not appear that the party receiving the ticket knew or had any reason to suspect that there were any special or exceptional conditions attached to it.
I agree with Mr. Justice Anglin that the deceased had notice of the conditions subject to which the pass was issued to him, or at least had reasonable notice and opportunity to have these conditions explained to him, and he did not choose to take advantage of that opportunity. It should not be lightly assumed that any man in this country is so ignorant as to believe that he may travel on a railway without a contract of some sort.
It is quite true, as Lord Watson pointed out in Robinson v. Canadian Pacific Railway Co.[29], that the provision as to duelling in article 1056 shews, that cases were intended to be comprised in which there could be no right of action in the deceased. But the death must have been caused by the commission of an offence or quasi-offence, and if there was no duty owing to the deceased by the company there could be no breach of duty and, therefore, no negligence which could give rise to this action.
I am of opinion this appeal should be allowed with costs.
Davies J.—This appeal is from the judgment of the Court of King’s Bench (appeal side) of Quebec, affirming a judgment of the Superior Court holding the appellant liable in damages for the death of one Joseph Chalifour, the husband and father of the widow and children bringing the action.
Chalifour’s death occurred in the Province of Ontario in a collision between a locomotive of appellants’ railway and a car of appellants in which deceased was travelling in charge of cattle belonging to his employers, the shippers of the cattle.
The contract to carry the cattle from Winnipeg, Manitoba, to Montreal, Quebec, was made in the former city, and the accident occurred in the Province of Ontario.
Both courts below held that the rights of the parties under the contract were to be determined by the law of Quebec, where the carriage of the cattle ended, and that the rights of the widow and children to recover damages for the death of the deceased caused by the admitted fault of the company was under that law an independent right and could not be barred or destroyed by a contract or covenant made with the company by Chalifour before his death.
As establishing such a covenant, the appellant relied upon a contract between itself and the shippers of the cattle, the form of which had the approval of the Board of Railway Commissioners and also upon a condition printed upon the back of what was called a pass, under which the deceased, as one of the men in charge of the cattle, was travelling.
These conditions were signed by one Addshead, who appeared to be the principal man in charge of the cattle, and also by Chalifour, the deceased.
The contentions of the company were first that the law of Ontario, where the accident occurred and of Manitoba where the contract was made were the same and that the rights of the plaintiffs and the company’s liabilities were to be determined by that law and not by the law of Quebec; and, secondly, that the conditions of the contract or pass absolved them from all liability for damages arising out of the accident causing Chalifour’s death, whether in the words of the condition,
such accident, injury, damage or loss is caused by the negligence of the company or of its servants or employees or otherwise howsoever.
In other words, the company contended that it had with the sanction of the Railway Board, contracted itself out of any liability whatever, even if caused by gross negligence or otherwise arising out of the carriage of Chalifour as man in charge of the cattle from Winnipeg to Montreal.
In the view I take of the proved facts and the liability of the company under them, it is not necessary that I should express any opinion upon the important question as to whether the law of Quebec or that of Ontario or Manitoba is to be the governing law in this case.
Mr. Smith contended for the respondents that while the Railway Board had sanctioned the form of contract between the shippers of the cattle and the company exempting the latter from liability in respect of the death, injury or damage of the men in charge of the cattle whether caused by negligence or otherwise, it had not expressly sanctioned the form of pass or contract which the company had made or contended it had made with the man himself and that such latter contract was still within the provisions of section 340 of the “Railway Act” prohibiting contracts impairing carriers’ liabilities unless authorized or approved of by the Board.
I am of opinion that the class of contract to be made between the railway company and its shippers approved of by the Board is quite sufficient to cover the pass or contract made with Chalifour, if that is binding, and the omission of the word “death” in this latter contract or pass does not affect its real meaning or limit that meaning.
The question, however, remains to be determined whether any binding contract with conditions as those contended for, was made between Chalifour and the company, and that must be determined upon a consideration of all the facts and circumstances.
Chalifour was a French Canadian who resided with his family in the Province of Quebec. He could neither read nor write French or English, but he could write his name. He was quite an illiterate man and as proved could not even read the newspapers in his own language. He spoke and understood a little English, enough to enable him to understand orders or instructions respecting his duties or employment as a cattle drover or caretaker. He is one of a large class in Quebec well known in Canada.
Before the train started from Winnipeg he and his co-employee, Addshead, signed a paper or rather certain “conditions” on the back of a paper on the front of which headed in large capitals were the words “Live Stock Transportation Pass.”
It was signed in the presence of two employees of the company, one Devillers, who witnessed it and was an interpreter of foreign languages and understood French, and one Anderson, another employee, who did not understand or speak French.
The evidence they gave is somewhat meagre. Anderson says he does not understand French, but stood beside Devillers while he filled in the pass, that there was some conversation between Devillers and Chalifour in French, but he did not understand it. All he seemed to be clear about was that if any questions were asked with respect to the conditions they were explained. Devillers does not remember what the circumstances were or if he had any conversation with Chalifour or whether he explained the conditions.
It seems quite certain that the live stock contract itself was not shewn to Addshead or Chalifour and that the only paper they saw at all was one on which was printed on the front in large type, “Live Stock Transportation Pass,” and on the back “conditions” which they signed. My conclusion is that all they saw was the back of this paper headed “conditions” and that they asked no questions, received no explanations and really did not have any idea what the paper was, except that it had something to do with the cattle which they were in charge of and their carriage, and that they as men in charge had to sign it.
To draw an inference that this illiterate French Canadian, who only spoke or knew enough English to take and carry out orders connected with his work in taking care of cattle and tending them; who could not read in either language nor write anything beyond his own name, knew or could have known the nature of the document he was signing, is something I must decline to do.
Whether he did so know or must be held to have known is more an inference of fact to be drawn from all the circumstances than a presumption of law.
Chalifour’s signature under the facts and circumstances proved, if it carries us as far certainly does not carry us any further than his acceptance of the pass if handed to him would have done without his signature.
All he knew was that he was one of the men in charge of the cattle to take care of them and tend them to Montreal: If the heading of the pass itself “Live Stock Transportation Pass,” had been read to him it would not have conveyed the slightest idea to his mind, in my humble judgment, that he was agreeing with the company to take all the chances of the trip and that in case he was injured the company were not to be liable to him even for the grossest negligence.
I think the cases clearly establish that there is no rule or presumption of law that a person is necessarily bound by the conditions contained in a document delivered to him as a transportation ticket, and I do not think that the mere signature itself under the circumstances and facts proved in this case changes the law with respect to such rule or presumption. Henderson v. Stevenson[30]; VanToll v. South Eastern Railway Co.[31].
My position is that Chalifour did not know it was a ticket or pass at all he was signing. It was not handed to him, but to Addshead, his co-worker, and, after the accident, was produced by Addshead, who evidently had retained possession of it all along. It does not appear ever to have been in the hands or possession of Chalifour.
In the case of Parker v. South Eastern Railway Co.[32], Mellish L.J., after reviewing several of the cases, at page 422, says:—
Now, I am of opinion that we cannot lay down, as a matter of law, either that the plaintiff was bound or that he was not bound by the conditions printed on the ticket, from the mere fact that he knew there was writing on the ticket, but did not know that the writing contained conditions.
And at page 423:—
I am of opinion, therefore, that the proper direction to leave to the jury in these cases is, that if the person receiving the ticket did not see or know that there was any writing on the ticket, he is not bound by the conditions; that if he knew there was writing, and knew or believed that the writing contained conditions, then he is bound by the conditions; that if he knew there was writing on the ticket, but did not know or believe that the writing contained conditions, nevertheless he would be bound, if the delivering of the ticket to him in such a manner that he could see there was writing upon it, was, in the opinion of the jury, reasonable notice that the writing contained conditions.
The real and proper question seems to be whether the, company did that which was reasonably sufficient to give the plaintiff notice of the condition under which they seek to be released from liability.
The well known case of Watkins v. Rymill[33], in 1883, may seem somewhat at variance with that statement. It was there held that
if a document in a common form is delivered by one of two contracting parties to and accepted without objection by the other, it is binding upon him, whether he informs himself of its contents or not.
This decision made no allowance for the special circumstances under which the document was delivered or the capacities or experience and knowledge of the parties.
The later decision of the House of Lords, however, in Richardson, Spence & Co. v. Rowntree[34], is that the question is one of fact and whether the carrier did what was reasonably sufficient to give the plaintiff notice of the condition under which they claimed exemption from liability.
The jury in that case found in answer to the question put to them that the company did not do so and, as the Lord Chancellor says, at page 220:—
The only facts proved were that the plaintiff paid the money for the voyage in question, and that she received the ticket handed to her folded up by the ticket clerk so that no writing was visible unless she opened and read it. There are no facts beyond those. Nothing was said to draw her attention to the fact that this ticket contained any conditions and the argument is that where there are no facts beyond these the defendants are entitled, as a matter of law, to say that the plaintiff is bound by those conditions. That, my Lords, seems to me to be absolutely in the teeth of the judgment of the Court of Appeal in the case of Parker v. South Eastern Railway Company[35], with which I entirely agree.
Lord Ashbourne in concurring with the Lord Chancellor, remarked:—
The ticket in question in this case was for a steerage passenger — a class of people of the humblest description, many of whom have little education and some of them none.
Lord Watson and Lord Morris concurred.
In a still later case, Marriott v. Yeoward Bros.[36], Pickford J., in delivering a judgment as to the effect of conditions on the ticket of a passenger said at page 992:—
For the purpose of the judgment I am about to deliver I assume that the loss was occasioned by the felonious act of the defendants’ servants. Under those circumstances the first point that I have to determine is whether the conditions on the ticket did or did not form part of the contract. That question is one of fact. I was, indeed, invited by the defendants’ counsel to hold as matter of law, upon the authority of the well-known case of Watkins v. Rymill[37], that the mere delivery and acceptance of the ticket with the conditions upon it was sufficient to make the conditions part of the contract. But that I am not at liberty to do. The case of Richardson v. Rowntree[38], in the House of Lords, clearly decided that the acceptance of the ticket does not of itself necessarily make all the conditions upon that ticket a part of the contract. It decided that the proper questions to be left to the jury were those which were formulated by the majority of the Court of Appeal in Parker v. South Eastern Railway Co.[39], namely, (1) whether the plaintiff knew that there was writing or printing on the ticket; (2) whether the plaintiff knew that the writing or printing on the ticket contained conditions relating to the terms of the contract of carriage; and (3) whether the defendants did what was reasonably sufficient to give the plaintiff notice of the conditions. For the purpose of determining the answer to the third of those questions I think that the cases of Richardson v. Rowntree38, and Acton v. Castle Mail Packets Co.[40], shew that the jury must take into consideration the class of persons with whom the contract is made. In Richardson’s Case38 stress was laid upon the fact that the ticket was for a steerage passenger, a class of persons of whom many, as Lord Ashbourne observed, have little or no education. In Acton’s Case40 stress was equally laid by Lord Russell of Killowen in his judgment on the fact that the plaintiff was a business man.
In a late case of Carlisle and Cumberland Banking Co. v. Bragg[41], Buckley L.J. in speaking of the effect which ought to be given to documents signed by a party whose signature was really obtained by fraud and who ought not, therefore, to be bound, says, at page 496:—
I do not think myself that cases of this kind are to be confined to the blind and illiterate. Blindness and illiteracy constitute a state of things of which the equivalent for this purpose may under certain circumstances be predicated of persons who are neither blind nor illiterate. If a document were presented to me written in Hebrew or Syriac, I should for the purposes of that document be both blind and illiterate — blind in the sense that, although I saw some marks on the paper, they conveyed no meaning to my mind, and illiterate as regards the particular document, because I could not read it. It seems to me that the same doctrine applies to every person who is so placed as that he is incapable by the use of such means as are open to him of ascertaining, or is by false information deceived in a material respect as to the contents of the document which he is asked to sign.
My conclusion is that Chalifour’s signature to the conditions indorsed upon the “Live Stock Transportation Pass” on which the company rely to relieve themselves from liability was obtained under conditions and circumstances which do not permit of any inference or presumption of fact that he knew or could have known what he was signing or that they were conditions of his transportation as man in charge of the cattle and that the company did not do what was reasonably sufficient to give him notice and knowledge of those conditions.
I would, therefore, dismiss the appeal.
Idington J.—The late Joseph Chalifour, travelling as a servant in the employment of a firm of cattle dealers, shipping cattle from the west over appellant’s railway, was killed near Chapleau in Ontario in an accident due to the negligence of appellant. This action was brought by his widow for herself and family to recover damages arising therefrom. She has since died and the action is continued by the surviving members of the family.
The defence is that he was travelling upon a pass issued to him as said servant engaged in taking care of the cattle shipped by said firm and that the conditions of said pass contained a limitation that the deceased assumed all risk of damage to person and properly and hence there can exist no claim on part of the respondents.
By section 544 of the Criminal Code, the appellant is prohibited from carrying cattle, under such circumstances as existed in this case, unless in charge of men engaged to see that the cattle are properly cared for.
The section 340 of the “Railway Act” prohibiting appellant from limiting its liability is as follows:—
No contract, condition, by-law, regulation, declaration or notice made or given by the company, impairing, restricting or limiting its liability in respect of the carriage of any traffic, shall, except as hereinafter provided, relieve the company from such liability, unless such class of contract, condition, by-law, regulation, declaration or notice shall have been first authorized or approved by order or regulation of the Board.
2. The Board may, in any case, or by regulation, determine the extent to which the liability of the company may be so impaired, restricted or limited.
This is substantially the same as section 275 of the “Railway Act” of 1903 under which the Railway Commissioners, in 1904, ordered as follows:—
That the above mentioned applicants do severally have power to use the forms submitted, and they are hereby legally authorized so to do until this Board shall hereafter otherwise order and determine.
The shipping firm, in whose employment the deceased was, admittedly shipped their said cattle under a form of contract thus approved.
The questions raised herein are thus far the same as raised in the case of Robinson v. The Grand Trunk Railway Co.[42], where this court held that the servant of the shipper who had signed a similar form of contract for the shipment of a horse and given the duplicate thereof to said servant, put in charge of the horse there in question, was entitled to damages arising from the negligence of the company. But in this case the matter of contract was carried a step further by the appellantes officers at Winnipeg issuing a pass worded, so far as bearing upon this case, as follows:—
To conductors: Winnipeg, 18th Sept., 1911.
The two men whose signatures are subscribed on back hereof are the only persons entitled to pass in charge of thirteen cars of live stock (here follow the numbers of the cars, etc.).
On the back of this there was printed in smaller type than appears in the case herein, the following:—
Conditions.
Each of us, the undersigned, having charge of live stock mentioned on face hereof, in consideration of the conditions of the Canadian Pacific Railway Company’s Live Stock Transportation Contract, agree with the company, while travelling on this pass to assume all risk of accident or damage to person or property, and that the company shall be entirely free from all liability in respect of any damage, injury or loss to any of us or the property of any of us whether such accident, injury, damage or loss is caused by the negligence of the company, or its servants or employees or otherwise howsoever.
Signatures: Witness:
F. Addshead. H. Devillers.
Joseph Chalifour.
Countersigned:
H. W. Dickson.
Local Freight Agent.
It is contended by appellant this is a contract by virtue of which the respondents are debarred from maintaining this action.
The respondents first deny the right of the company to impose such limitation of liability and next shew by evidence justifying the finding of the learned trial judge that deceased could read neither English nor French and understood but little English — only enough to understand the orders of his superior, relative to his usual duties as a cattle man, if I understand what she speaking is testifying to.
The attesting witness Devillers does not help much by what he says. At the utmost it seems to be that if deceased asked for any explanation it was given him, but he has no recollection of the man or circumstances. Dickson seems to remember that Devillers said something to the deceased in French, but what passed he cannot tell for he understands no French.
The other cattleman, Addshead, who seems to have signed first and to have escaped from the accident uninjured, was not called. It seems to be fairly demonstrated from the circumstances put in evidence and relied upon by respondents that he was the bearer of this pass. We are not enlightened in any way unless by the name and the fact that he was first to sign and carried the pass, whether he could speak English or not. If I were pressed to answer I should say he was of English stock and likely knew as little French as Dickson.
All such minor details are usually of little consequence, but as bearing upon the probability of deceased understanding what he was about in signing his name to this alleged contract, I should have liked to have known all such details and have been the better able to realize whether or not the deceased knew and understood what he was doing when he signed his name to the said paper.
In some of the cases elucidating the law we have to deal with, it is suggested in England a man signing or even accepting a like conditional pass might be presumed to know how to read English. But if we would do justice here in Canada we cannot proceed upon any such hypothesis. Men of the race of the deceased may by nature be as bright and intelligent as any Englishman yet be so handicapped by their want of knowledge of either English or (for that matter as the evidence here discloses) French when it has to be read, that we must be careful to observe that not unusual condition of things in coming to a conclusion in a matter of this kind.
And I may add that in Canada they are not the only persons to whom the like considerations must be extended if justice is to be done.
To my mind the question above all others to be determined herein is whether or not the appellant has produced evidence, upon which we can safely rely, enabling it to claim that deceased contracted himself and thereby respondents out of all right to complain of the grossest kind of negligence on appellant’s part.
No one who has that general knowledge of the world, and this little part of it, and of the class and kind the deceased belonged to, and the usual mode in which such transactions as involved herein are gone about, but must feel loath to hold that deceased knowingly and understanding what he was about intended to contract as appellant contends he did contract. The onus rested on appellant to shew that he did.
I cannot hold on the evidence before us that it satisfies me.
And as to any implication from the service in which deceased was engaged, we are bound for the present at all events by our decision in the Robinson Case[43]. There is, moreover, in this case a feature that has impressed me very much and renders the position of appellant weaker than in the Robinson Case[44].
It is this:—That in that case the entire contract of the shipper, if read, was before the plaintiff and for a time in his possession and it contained the following clause:—
In case of the company granting to the shipper or any nominee or nominees of the shipper a pass or privilege less than full fare, to ride on the train in which the property is being carried, for the purpose of taking care of the same while in transit, and at the owner’s risk as aforesaid, then as to every person so travelling on such such a pass or privilege less than full fare the company is to be entirely free from liability in respect of his death, injury or damage, and whether it be caused by the negligence of the company, or its servants or employees or otherwise howsoever.
What right had appellant to convert the clear explicit language of this clause
free from liability in respect of his death, injury or damage, and whether it be caused by the negligence of the company, or its servants or employees or otherwise howsoever,
into the dubious sort of terms contained and used in the above quoted conditions? It seems to me it had none. Such contract as it has any right to impose in such a case must fall within the order of the Board or be null. The word “traffic” in said section 275 is by the interpretation clause made to cover passengers as well as freight. In the first place there is a great deal to be said for the argument that this limitation was never in law applicable to the case of the servant himself for his loss, but only to the interest of the master in his servant And such right of action as he might have for injury to him and hence never in law intended to extend to the rights of the servant himself. It is clear to my mind the order is capable of such a construction. And unless the order must be construed as covering and enabling such a limitation of liability there is nothing upon which the appellant can rest, unless upon the said conditions being construed as a clear contract on part of deceased whereby his widow and children would be deprived of any right to complain herein.
And applying such a test to this ambiguous thing called “conditions” we are face to face with the interpretation put thereupon by Mr. Justice Cross in the Court of Appeal holding it did not cover the case of death resulting from the injury.
That is not my own interpretation of the terms used in the conditions, but clearly they can be so read.
And yet in face of that view held by a careful and able judge we are asked to impute to the poor deceased — ignorant of the language — a clear understanding that the condition applied to his death and that in such event though caused by the grossest negligence on the part of appellant, his family could have no cl