KING J.-Tbis action is brought under the Workman's Compensation Act for injuries sustained by. plaintiff, a servant in defendant's employ, through the alleged negligence of one Garland, a person in defendant's service, to whose orders the plaintiff was bound (as alleged) to conform, and to whose orders he was conforming when the injury was sustained. The plaintiff was a yardman whose duty it was (among other things) to couple cars in the Toronto yard of the Grand Trunk Railway. One Garland was K Jalso employed in the yard, and had under his control and direction an engine with its driver, the plaintiff and another. On the day of the accident several uncoupled cars were standing upon the west elevator siding.
The engine was on another set of rails, and Garland directed the driver of the engine to go on to the west elevator siding.
After giving this order Garland crossed over from the one track to the other in company (as plaintiff says) with the plaintiff. and the two were at the cars on the west elevator siding before the engine backed through the switch. According to the plaintiff the two were standing nearly opposite the ends of the second and third cars when Garland told him to shift the link between these cars, and (according to him) gave precise directions as to the manner of doing this.
In the end of each car there is an iron projection for connecting the cars called a draw-bar, with an opening in the end for the admission of an iron link, and a hole above and below through which a pin is passed to hold the link in place. The link is of about one and a half inch iron and about twelve inches in length.
When two cars are stationary upon a siding and it is intended to couple them, the link is ordinarily made fast in the draw-bar of the forward car. Then when this car is moved back the free end of the link enters the draw-bar of the rear car and is made fast thereto.
If the draw-bars are of the same height and if the link is presented horizontally the entry is readily made, but otherwise it may need to be directed by hand.
The pin is sometimes dropped in by the yardman, but frequently he sets the pin beforehand at an angle in the hole of the draw-bar and the concussion causes it to fall into its place, or " make " as it is termed.
In the case before us the link was fastened in the forward draw-bar and the cars were standing so close that the free end of the link was entered into the other draw-bar, but in such a way that the pin could not enter.
There was, moreover, a difference in the two pins.
That in the forward car was of the more usual pattern and had a sharp or tapered point. The other, known as a " mogul pin " was blunt at the point, and according to plaintiff the chance was that the coupling could not readily be made unless the mogul pin was first put in.
In order to do this it became necessary to shift the link, i.e., to make the link fast in the draw-bar of the rear car by use of the mogul pin, leaving the forward end of it free. The distance between the two draw-bars was but four inches, and the shifting of the link required that the pins be taken out and the link moved along further into the draw-bar of the rear car.
The plaintiff says that Garland and he, standing at the side of the cars, saw the condition of things, and that Garland gave him instructions to go in and shift the link from draw-bar to draw-bar.
In answer to a question on cross-examination the plaintiff stated that the proper way was to have coupled the engine to the forward car, and move ahead slightly, when, the cars being further apart, the link could have been taken out of the forward and placed in the rear draw-bar, and the coupling then effected by backing the forward car down again; and he further stated that he supposed the particular direction ws with the object of saving time.
He admits that he was skilled in the work of coupling cars, and that he was not accustomed to get directions as to the mode KingJ. of doing it, and that Garland had never before given him directions as to the way of doing his work. At the time that the directions were given he saw the engine backing up, and when he stepped between the cars the engine was not over eight or ten feet from the forward car, and moving so slow that she was just about at a stand still, and he says that he expected that Garland would stop the engine.
As plaintiff stepped between the cars, Garland went off towards the engine.
The evidence of plaintiff was contradicted. Garland denied giving any directions whatever, and two other witnesses corroborated his statement that he was at the forward end of the front car instead of where plaintiff said he was. The jury has, however, in effect adopted plaintiff's account.
As to what took place when plaintiff went between the cars, he was asked:
The defendants sought to shew that plaintiff ought not to have used his fingers, but should have shifted the link by moving it along one of the pins. The plaintiff on the other hand says that
One can see, however, that the mode to be adopted may depend upon whether or not the workman has reason to believe that the cars will not be struck by reso the engine during the operation.
If he has reason to believe that the engine will not strike the cars, clearly he might well proceed in the simplest and most expeditious way, i.e., by the use of the fingers.
Of course if plaintiff had known that the engine was to be backed up against the cars he should have kept his fingers away.
But his case is that he had reason to suppose that Garland would have prevented the engine from striking the car.
Garland clearly had the control of the movements of the engine. This abundantly appears from the evidence of the driver and others.
The case, then, is in the same position as if Garland was in fact upon the engine moving it backwards.
The first question is : Did Garland direct plaintiff to go in and shift the link as stated by plaintiff? There is evidence on both sides; and the jury having found that the direction was given the finding is to be accepted by us, as it has been by the courts below.
Next; was it impliedly involved in the direction that plaintiff might use his fingers ?
Mr. Justice Burton grounds his dissent upon this that Garland did not direct plaintiff to move the link with his fingers.
I think, however, that in the absence of specific direction the general direction authorizes the doing of the thing in the way reasonably proper for the doing of it; and providing that the engine was not to be moved against the car who can say that it was not proper enough to use the fingers?
The doing of the act by the use of a pin would be tedious and I would think almost impracticably so.
Next: Was Garland empowered to give such instructions ?
I think that it was within the scope of his authority. If (as stated by plaintiff) the coupling of the cars in a Certain way would save time he clearly could direct it to be done in that way.
All powers reasonably incidental to the exercise of the general power are to be implied.
The case, then, is within Kig-.
Wyld v. Waygood where it was held that liability .1 .
under the similar provisions of " The Employers Act " is not limited to an injury resulting from an order which is negligent in itself.
The injury here (as in that case) resulted from the plaintiff having conformed to an order when he was told to go to a place which was, and must have been known to be, a dangerous place if the person who told him to go was guilty of negligence.
In my opinion the appeal should be dismissed and for the reasons given by the majority of the learned judges in the Court of Appeal.
Appeal dismissed with costs.