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SUPREME COURT DECISIONS,

WEST V. CORBITT. N.B.]

Negligence—Railway—Prescription Damage or Injury by Reason of Construction "-Contractor—Transcontinental Railway Commissioners—Railway Act, sec. 306.

Sec. 15 of The National Transcontinental Railway Act provides that “the Commissioners shall have, in respect to the Eastern Division, . . . all the rights, powers, remedies and immunities conferred upon a railway company under the Railway Act.”

Held, Fitzpatrick, C.J., and Idington, J., dissenting, that the provision in sec. 306 of the Railway Act that “all actions or suits for indemnity for any damage or injury sustained by reason of the construction or operation of the railway shall be commenced within one year,” etc., applies to such an action aganist the Transcontinental Railway Commissioners and also against a contractor for construction of any portion of the eastern division.

Held, per ANGLIN, J., that it applies also to an action against a contractor for constructing a railway for a company incorporated by Act of Parliament.

Appeal dismissed with costs.

F. R. Taylor, for appellant.
Reed, K.C., for respondents.

STONE v. CANADIAN PACIFIC R. W. CO. ONT.] Railway—Company Negligence—Foreign Car Pro

tection of Employees—R. S. C. (1906), ch. 37, sec. 265, sub-sec. 1 (c).

The C. P. R. Co. had received a car with freight from the Wabash Co., and before returning used it in a shunting operation. A brakesman on top of this car, which was approaching another with which it was to be coupled, saw that the knuckles of the coupler on each car were closed and, being unable to signal the engineer to stop, climbed down a side ladder, none being on the ends, and tried to reach round to the lever of the coupler. In doing so he held on with his left hand to a rung of the ladder only twenty inches above where his left foot was placed. There was no room for his other foot and as the train went over a crossing he was jolted off and fell with his right arm under the wheels of the car, injuring it so that it had to be amputated. In an action against the company, the jury found that the latter was negligent in not having end ladders on the Wabash car nor levers of sufficient length. A verdict for the plaintiff was set aside by the Court of Appeal (26 Ont. L. R. 121). Held, reversing the latter judgment, that the company was liable for non-compliance with the provisions of sec. 264. sub-sec. 1 (c) of the Railway Act. FitzPATRICK, C.J., dissented on the ground that the plaintiff's own negligence caused the accident.

Appeal allowed with costs.

Creswicke, K.C., and C. C. Robinson, for appellant.
Hellmuth, K.C., and MacMurchy, K.C., for respondents.

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Railway Company Carriage of Passenger Special Contract Notice to Passenger of Conditions–Negligence—Eremption from Liability.

P., at Milverton, Ont., purchased a horse for a man in another town, who sent R. to take charge of it. P. signed the way-bill in the form approved by the Board of Railway Commissioners, which contained a clause providing that if the consignee or his nominee should be allowed to travel at less than the regular fare to take care of the property the company should not be liable for any injury to him whether caused by negligence or otherwise. R was not asked to sign the way-bill though a form endorsed provided for his signature and required the agent to obtain it. The waybill was given to R., who placed it in his pocket without examining it. On the passage he was injured by negligence of the company's servants.

Held, that B. was not aware that the way-bill contained conditions.

Held, also, FITZPATRICK, C.J., dissenting, that the company had not done all that was incumbent on them to bring notice of the special condition to his attention.

Judgment of the Court of Appeal (27 Ont. L. R. 290), reversed, and that of the trial Judge (26 Ont. L. R. 437), restored.

Appeal allowed with costs.

McKay, K.C., and Haight, for appellant.
D. L. McCarthy, K.C., for respondent.

MERRITT V. TORONTO. ONT.]

Riparian Rights—Interference—Evidence.

M., claiming to be a riparian owner on the shore of Ashbridge Bay (part of Toronto harbour), claimed damages from, and an injunction against, the city for interference with his access to the water when digging a channel along the north side of the bay. Held, affirming the judgment of the Court of Appeal (27 Ont. L. R. 1), by which an appeal from a Divisional Court (23 Ont. L. R. 365), was dismissed, that the evidence established that between M.'s land and the Bay was marsh land and not land covered with water as contended, and, therefore, M. was not a riparian owner.

Appeal dismissed with costs.

Mowat, K.C., for appellant.
Geary, K.C., and Colquhoun, for respondent.

TORONTO IRY. CO. V. FLEMING. ONT.]

Negligence—Street Railu'ay—Erplosion Defective Controller—l nspection.

S. was riding on the end seat of an open street car in Toronto when an explosion occurred. The car was still in motion when other passengers in the same seat, apparently in a panic, cried to S. to get off, and when he did not do so, endeavoured to get past him, whereby he was pushed off and injured. In an action for damages the jury found the company negligent in using a rebuilt controller in a defective condition and not properly inspected, and the motorman negligent in not applying the brakes.

Held, affirming the judgment of the Court of Appeal (27 Ont. L. R. 332), that the evidence justified the jury in finding that the controller had not been properly inspected and that a proper inspection might have avoided the accident.

Held, per IDINGTON and BRODEUR, J.J., ANGLIN and DAVIES, J.J., contra, that the motorman should have applied the brakes.

Appeal dismissed with costs.

D. L. McCarthy, K.C., for appellants.
Gamble, K.C., for repondent.

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In August, 1908, M. and his brother bought a hotel business in Ottawa for $8,000, paying $6,000 down and securing the balance by notes which were afterwards retired. In November, 1908, M. conveyed a hotel property in Madoc

to his wife subject to a mortgage which she assumed. M. and his brother carried on the Ottawa business until March, 1910, when they assigned for benefit of creditors, who brought suit to set aside the conveyance to M.'s wife. On the trial it was shewn that for some time before November, 1908, M.'s wife had been urging him to transfer to her the Madoc property which she had helped him to acquire, as a provision for herself and their children; that she had joined in a conveyance of a property in Toronto in which they both believed she had a right of dower, and the proceeds of the sale of which were applied in the purchase of the Ottawa business; and that all of M.'s liabilities at the time of said conveyance had been discharged. M. ascribed his failure in Ottawa to the action of the License Commissioners in compelling him to move his bar to the rear of the premises whereby his receipts fell off and he lost rents that he had theretofore received, and had to make extensive alterations; and to a fire on the premises early in 1910. The trial Judge set aside the conveyance to M.'s wife; his judgment was reversed by a Divisional Court (24 Ont. L. R. 591), but restored by the Court of Appeal.

Held, affirming the judgment of the Court of Appeal (27 Ont. L. R. 319), DAVIES, J., dissenting, that the conveyance by M. to his wife was voluntary; that it denuded him of the greater part of his available assets and was void as against his present creditors.

Appeal dismissed with costs.

Proctor, for appellant.
Hogg, K.C., for respondents.

PETERS W. SINCLAIR. ONT.]

Trespass Easement—Public Way—Dedication—User Prescription.

S. brought action against P. for trespass on a lane called Ancroft Place, which he claimed as his property and asked

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