DUFF J.-I think Mr. Taylor has succeeded in establishing his contention that rule 91 which was so much relied upon in the court below, was not observed by the company in the operation of the line in question. The rule in its nature seems to be one impossible to apply in its entirety to a line operated as this was. Rule 210 shews that this system required, and, indeed, it is the very basis of the system, that all trains shall move either by time-table or pursuant to special written orders. Admittedly there was no time-table, and if there were written orders they were apparently exceptional.
The defence based upon the rule was obviously an afterthought.
It was not set up in the pleadings and appears to have occurred to nobody until counsel for the respondents began to examine the book of rules which was put in evidence by counsel for the appellant.
The question of substance appears to be whether the jury could reasonably reject the defence set up in the pleadings, and insisted on at the trial, viz., that the appellant cannot be acquitted of contributory negligence in approaching Stratheona Station without having his car under better control. I have carefully considered all the circumstances bearing upon this point. The point is a doubtful one, but on the whole I think the view of the learned Chief Justice, before whom the case was tried, is the better view, and that it was proper that the jury should be asked to pass upon the question. I do not enter into the evidence in detail because I concur with the opinion expressed by two of the learned judges of the Court of Appeal that the evidence of McCutcheon was improperly rejected and that on that ground there ought to be a new trial. As to the costs I think the appellant is entitled to the costs in this court, and the respondei(ts should be entitled to the costs of the appeal to the Court of Appeal.
The costs of the former trial should abide the result of the new trial.
J.-The jury was fully justified in finding that the defendants were guilty of gross negligence because of their defective system, or utter lack of system, in the operation of their railway. With great respect, the earlier part of rule 91, for breach of which the majority of the learned judges of the Court of Appeal have found the plaintiff to have been guilty contributory negligence, cannot, in my opinion, be invoked by the defendants.
The particulars of contributory negligence delivered by them make no allusion to this breach of rules. The evidence shews that rule 91 was not enforced in the practice of the company. Indeed, the methods adopted in operating their railway would seem to have made it impracticable to carry out that rule in so far as it relates to keeping trains five minutes apart. The necessary means were not provided. I rather think that if disposing of this case as a trial judge sitting without a jury I would not improbably take the view of the learned Chief Justice of the Court of Appeal that the proximate cause of the accident in which the plaintiff was injured was his own failure to have his car, when coming into Strathcona Station, under proper control, having regard to his expectation that the preceding car, the "Cloverdale,"
might still be stopping at that station, to the fact that the night was dark and foggy, the range of vision being only from eight to twenty feet at the point in question, and to the requirement of rule 91 (which, though not capable of J. being enforced in practice in other respects, is, in this particular merely an expression of an obligation entailed by common prudence in entering a station where it is not unlikely that another car is standing)
that
But in so dealing with the case I would be discharging the functions of a jury.
I cannot say that the evidence bearing on the issue of contributory negligence is not susceptible of another view, or that any other conclusion than that reached by the learned
Chief Justice would be so clearly unreasonable that it would be perverse. I am, therefore, unable to agree in the judgment of the Court of Appeal dismissing this action, which was necessarily based on the opinion that it should have been withdrawn by the trial judge from the jury. Prima facie an issue of contributory negligence is for the jury and the case must be very clear when a trial judge is justified in taking it from them on the ground that contributory negligence has been so conclusively established that no jury could reasonably find otherwise.
But the verdict cannot be reinstated. I agree with Martin and Irving JJ.A., that the evidence of Mc- Cutcheon was improperly rejected.
In order to refresh his memory he was entitled to look at the copy of his notes, which he was prepared to verify as having been made by himself from the original which was a transcript of his stenographic report of the interview between the plaintiff and the defendant's superintendent. His evidence would have borne directly cn the main issues and it is impossible to say that its rejection did not materially affect the determination those issues.
There must be a new trial.
J.-I concur in the opinion of my brother Duff.
Appeal allowed with costs.