DUFF J.-The deceased, Archer Samuel Wilkinson, met his death in a collision while travelling in one of the appellant company's passenger cars from
Vancouver to New Westminster. The inference that the collision was due to a want of ordinary care part of the officers or servants of the company is indisputable. The company seeks to escape liability on the ground that the evidence fails to shew facts which enable us to say whether this absence of care involved any breach of duty for which the company is answerable to the respondent.
Wilkinson, who resided in Vancouver, was employed in the shops of the company at New Westminster, and was on his way thither on the morning when the accident occurred.
It does not appear whether he did or did not pay his fare.
It is suggested that he may have been carried gratuitously;
and this suggested possibility is made the ground of the contention upon which the appeal was mainly based, viz.: that since we are ignorant of the character in which Wilkinson was on the appellant's car whether, that is to say, as a passenger paying his fare, or as a passenger travelling free, or as a servant being carried to his work; and, since we are equally ignorant of the character of the negligence out of which the collision arose, the plaintiff must fail as we obviously cannot, in these circumstances, affirm either the existence of the gross negligence alleged to be necessary to attach liability to the company in the second case, nor the existence of negligence other than that of a fellow-servant which is necessary for success in the third.
This contention appears to me to be without substance.
I do not agree that in such an action as this it is necessary to prove that the traveller who has been killed, had paid for his carriage or had entered into a contract to pay for it or that he was not being carried in the character of fellow-servant of those responsible for the accident. The appellants are a railway company carrying on the business of common carriers of passengers. The obligation to take reasonable care to carry safely arises out of the acceptance of the passengers.
The law as settled is stated in the passage quoted by Mr. Chrysler from the treatise on carriers in the "Laws of England," art. 80:- The case of Nightingale v. Union Colliery Co. (1), cited by Mr. Ewart, is not a relevant decision. There the person injured was not being carried in a public conveyance by a railway company in the course of its business of common carrier of passengers. He was travelling on a locomotive attached to a freight Diff J. train and was there in violation of an express rule of the company. In the case before us the presumption is that Wilkinson was lawfully on the car and the rule above stated applies unless something is shewn (some agreement, express or implied, or some relationship between the passenger and the company) which excludes or limits the application of it.
The doctrine of common employment or more accurately the doctrine of Priestly v. Fowler (2), was invoked; but there is nothing in the evidence to justify the application of that doctrine. Wilkinson's work was in the shops; at the time he met with the accident his day's work was not begun; and the risk of injury on the railway can not, therefore, be regarded as a risk incidental to his service, unless it be shewn that he was being carried by the appellants not in the character of common carriers, but in that of employers in other words, under some arrangement which was part of or ancillary to his contract of service. (See Coldrick v. Partridge, Jones d& Co.(3).)
Of this there was not the slightest legal evidence an d there was, consequently, on this head, no question which could properly be left to the jury. The sole point, therefore, upon which the jury had to pass was the amount of damages to be awarded; and, on that point, there is no adequate reason for disturbing their verdict.
and JJ. agreed with Duff J. J.
A.ppeal dismissed with costs.