At the conclusion of the argument for the appellants, and FARELL without calling on counsel for the respondent, the judgment D. of the Supreme Court of Canada was orally delivered by the presiding judge, dismissing the appeal with costs.
J. C. Martineau for the appellant.
F. Choquette for the respondent.
WINNIPEG, SELKIRK AND LAKE
*Oct. 29.
WINNIPEG RAILWAY COMPANY
APPELLANT; (DEFENDANT)
.......................
*Feb. 5.
AND
PAUL PRONEK (PLAINTIFF)
...........
(RESPONDENT. ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA Street railways-Negligence-Tramcar at night overtaking and striking sleigh on track-Degree of care required of railway company-Duty as to power of headlight.
Defendant operated a street railway between Winnipeg and Selkirk, its line running along the west side of a highway. Between the railway and the main travelled road there was a ditch. The ties and rails were above the ground level. There were built up crossings across the ditch and railway. Plaintiff was driving along the road after dark on January 2, 1926, when his horses ran away. They turned over one of said crossings on to the prairie, made a circuit and came back to the crossing and turned and ran along the railway where they were, further on, overtaken and struck by defendant's tramcar, the motorman, who was going at 30 miles an hour, not having seen them in time to stop before hitting them. Plaintiff sued for damages. The headlights used on defendant's cars were the standard equipment of similar cars on this continent. But the motorman testified that he had had trouble on his trip that evening from Winnipeg to Selkirk with dimness of the light; he had changed the carbon at Selkirk, but still had trouble with dimness on the trip back to Winnipeg, on which the accident happened; when the light was working with full efficiency he could see about seven " pole lengths " ahead; he had made emergency stops in about three pole lengths; he did not see plaintiff's outfit until he was about one pole length away.
Evidence was given that after the accident the light was tested and found in good condition. An expert testified that in all arc lights there is a variation in brightness, due to automatic adjustment in the carbon, causing momentary dimness, and to the light being affected by line volt- *PRESEwr:-Anglin CJ.C. and Newcombe, Rinfret, Lamont and Smith JJ.