APPEAL by the plaintiffs from the judgment of the Appellate Division of the Supreme Court of Alberta (1) allowing (Beck and Clarke JJA., dissenting) the defendant's appeal from the judgment of Tweedie J., upon the verdict of a jury, given in favour of the plaintiffs, in an action for damages for injuries to the infant plaintiff, a boy of seven years of age, caused by his being run over by the defendant's street car, owing, as alleged by the plaintiffs, to the negligence of the defendant's motorman.
The accident happened about 2.30 o'clock in the afternoon of May 23, 1927, near the intersection of Ninth Avenue South and Twelfth Street South in the city of Lethbridge.
The car was going westward on Ninth Avenue. The track on Ninth Avenue is a single track, and Ninth Avenue runs straight from Thirteenth Street westward to Sixth Street. The boy's leg was badly injured and had to be amputated.
According to the boy's story, he was running to catch the street car to go home on it. To get on the car he had to cross the track from the south side of it to the north side. He was wearing rubbers on his shoes, and as he was crossing the track, in front of the car, he got stuck in the mud, could not get his foot away, cried " help " and waved his arms, but the car ran over him. He said that before the car hit him he saw the motorman talking to a lady in the car, and looking towards her and not towards him. According to the motorman's evidence, he did not see the boy at all, or anybody on the track; he was keeping a watch ahead, and there could not have been anything on the track without his seeing it; he knew nothing of the accident until his car returned to the same place, about seventeen minutes after the accident. He said that a lady came out into the vestibule of the car, and he applied his brakes, thinking she wanted to get off at Twelfth Street, but when they were at Twelfth Street she said " Not here. Ninth Street."
His application of the brakes brought the