The appeal is allowed and judgment directed to be DMLE entered in favour of the plaintiff (appellant) against the defendant (respondent) in the sum of $2,453.18, being one-half the amount of damages assessed by the trial judge. The Court The appellant shall have one-half of the costs of the action and trial, and all the costs of his appeal to this Court. The respondent shall have her costs of her appeal to the Appeal Division of the Supreme Court of New Brunswick.
Solicitor for the appellant: P. J. Hughes.
Solicitor for the respondent: A. M. Chamberland. CANADIAN
PACIFIC
RAILWAY
*Oct. 18,19.
COMPANY
(DEFENDANT) ..........
AND
*Feb. 1.
WASYL KIZLYK IN HIS OWN BEHALF
AND AND BEING THE ADMINIs- THE ESTATE EFFECTS
RESPONDENT. HIS DAUGHTER MARY KIZLYK,
(PLAINTIFF)
.......................
ON APPEAL FROM THE OF APPEAL MANITOBA Negligence-Railways-Child, while passing between cars on spur track in railway grounds, crushed by cars being moved by switching operations -Railway company sued for damages-Action dismissed at trial on motion for non-suit-New trial ordered on appeal-Whether there were questions which should have been submitted to jury-Railway company's duty to child-Whether child a trespasser.
At the end of a spur track in defendant's grounds at a flag station on defendant's line of railway, a railway car, acquired and converted into a school-room by the Department of Education of the Province of Manitoba, was, under an agreement with defendant, located and used as a school for the settlement in the vicinity. A barricade was erected on the spur track so that no railway operations thereon could extend to the track where the school car rested. For about two months before the accident in question a line of box cars had been on the spur track, with a gap of or 2 feet between the two cars thereof nearest the school car, the nearer of said two cars being about 90 or 94 feet from the steps of the school car. A school girl, 12 years old, who, with some companions, had left the school earlier than. usual (as examinations were being held), went from the school along a *PRESENT:-Rinfret, Davis, Kerwin, Hudson and Rand JJ.