the accident. It was held that S. contributed to the accident by his negligence, and could not recover. And it was also held by Willes, J., "that the mere failure to perform a self-imposed duty is not actionable negligence; that the omission to fasten the gate did not amount to an invitation to S. to come on the line; and that, therefore, even if S. was not guilty of contributory negligence, the company were not liable."

Here the plaintiff found the gate open, but did not see the watchman. That in itself should have suggested to the plaintiff the possibility at least that the gate was open, not as an intimation that there was no danger, but that the watchman had been withdrawn that there was no watchman in fact. No inquiry was made. The plaintiff thought the watchman was in his cabin-if so, he was not attending to the gate. The plaintiff knew of the railway, that this road led across it, and he knew of the ordinary danger at any railway crossing, and had these all in mind, so there was nothing to relieve the plaintiff of the duty of taking care and using caution when the crossing was reached, unless that care and caution were unnecessary by the fact of the gate being open.

The plaintiff relied upon Baxter v. Jones (1903), 6 O.L.R. 360, and upon cases cited in Anson on Contracts, 10th ed., p. 98. One case is where a person undertook gratuitously to effect insurance upon another person's house, and, having failed to do so, was held liable. These cases, which are cases of mandate, and nothing of the kind exists here, are said to rest upon this broad ground, as stated by Willes, J., in the Skelton case, that if a person undertake to perform a voluntary act, he is liable if he performs it improperly, but not if he neglects to perform it. The charge here is that a watchman employed did not do his duty properly. He was not at the gate at all. He was, as to the plaintiff and the public, when this accident happened, the same as during the night time-or during the rest of the year after October--when withdrawn from the gate.

I do not think the defendants are liable for merely leaving the gate open, as there is not, in my opinion, any duty to keep the gate closed at the time of approaching or passing trains. The plaintiff's own account of the accident is as follows: "I was coming through High Park, and when I got to the incline where you go out of the gate I pulled up there, I almost pulled up, I did not

2-VOL. XV. O.L.R.

Britton, J.

1907

SOULSBY

บ.

CITY OF TORONTO.

stop exactly, just almost stopped, and I gave a look, and there
was no train or anything in sight, there was no noise or bell ringing,
and I ventured to cross, thinking every other time the watchman
came out and either put out his stick or flag, and not seeing him
do this, I thought he was in the cabin. I ventured to cross. I
thought my track was clear, but the train came along, and when
it was as far as from me to Mr. Godfrey, blew its whistle and I was
struck.
The distance to Mr. Godfrey was called about
ten yards. The horse got over the south track and was not killed.
The locomotive struck the rear end of the plaintiff's waggon. "The
gates were kept up when the track was clear." "I looked; that
is the reason I thought my track was clear." "When I saw the
gate up I started to go across." "This was about 4 o'clock in the

afternoon."

"I thought the watchman was in his cabin.” "It was that cold day on account of the cold day." "I thought he was in the cabin, and I thought my track was clear, and I ventured to cross."

This all goes to shew that the unfortunate plaintiff had the means of knowing, and did, in fact, know, as much as the gate-keeper would have known had he been at the time at his cabin.

Baker (the watchman) had no time-tables. He was not in communication with the railway people, but simply upon hearing or seeing a train approaching he was accustomed to close the gate. Suppose he had been at his post, and had not seen or heard more than the plaintiff did the plaintiff could hardly impute that as negligence. The only means Baker had of knowing when to close the gate was to look and listen. The plaintiff had that same opportunity; he did look-his only complaint is that he did not get the warning or prohibition implied by a closed gate.

The accident is, like others, a very regrettable one, and I would be very glad if the defendants could see their way to assist the plaintiff in some way, but, as I think the plaintiff not entitled in law to recover, I must dismiss the action, and I do so without

costs.

E. B. B.

[IN THE COURT OF APPEAL.]
EMPEY V. FICK ET AL.

Parent and Child-Conveyance of Farm by Father to Daughters-Agreement for
Maintenance- Action to Set aside Transaction-Understanding and
Capacity of Grantor-Absence of Undue Influence-Improvidence-Status
of Heir at Law as Plaintiff.

The decision of a Divisional Court, 13 O.L.R. 178, dismissing an action by one
of the heirs at law of the grantor to set aside a conveyance of a farm by a
father to his daughters, for undue influence, improvidence, etc., was affirmed,
the majority of the Court of Appeal agreeing with the reasons given by the
Court below.

Per MEREDITH, J.A.:-If the transaction had been attacked by the grantor in his lifetime, it would have been set aside; it was not so attacked, but rather confirmed; and (per RIDDELL, J., also) no one representing or claiming under the grantor could successfully attack it.

Per RIDDELL, J.:-Since the Devolution of Estates Act, the right of the heir at law to sue to set aside a transaction of this kind is not higher than the right of a residuary legatee to sue in respect of personal property; the plaintiff had no right to bring the action at all until the expiration of the period of the three years fixed by 2 Edw. VII. ch. 17, sec. 3, amending R.S.O. 1897, ch. 127, sec. 13; and the fact that the personal representative was made a defendant did not assist the plaintiff.

APPEAL by the plaintiff from the decision of a Divisional Court, 13 O.L.R. 178, reversing the judgment of Clute, J., at the trial, and dismissing the action, which was brought by Ernest Empey, a son and one of the heirs at law of David Ira Empey, deceased, against Emma Fick and Angela L. Daniels, sisters of the plaintiff, and William Pow, administrator of the estate of David Ira Empey, for a declaration that a conveyance made by David Ira Empey, on the 29th August, 1901, of his farm to two of his daughters (defendants) was fraudulent and void, and for consequent relief. The plaintiff amended his statement of claim before the trial by alleging that he sued on behalf of himself and all other heirs at law of the deceased, and at the trial the widow of the deceased was added as a defendant. The facts are stated in the judgment of the Divisional Court, and more fully in that of RIDDELL, J., infra.

The appeal was heard by Moss, C.J.O., OSLER, GARROW, MEREDITH, JJ.A., and RIDDELL, J., on the 15th and 16th May, 1907.

The

J. S. MacKay and J. M. McEvoy, for the plaintiff, the appellant. The trial Judge found that there was no evidence that the deed and agreement attacked were the act and deed of the grantor. Divisional Court reversed this finding, the Chancellor saying that "the father understood what was being done." There is no evidence

C. A.

1907

June 5.

C.A. 1907 EMPEY

V.

FICK.

to justify this, and the finding of the trial Judge should be restored. It is admitted that there was a time when the father was mentally unsound, and the onus was on the defendants to shew that at the time the deed and agreement were executed the father was competent, and that he had independent advice. The uncorroborated evidence of the persons profiting by the transfer is of little value in this regard. There was no consideration for the transfer. The defendants had nothing to make good their covenant but the property which their father was giving them. See as to this Beeman v. Knapp (1867), 13 Gr. 398. Dawson v. Dawson (1866), 12 Gr. 278, and Irwin v. Young (1881), 28 Gr. 511, make it plain that where there is a confidential relationship, good faith and a full understanding must be shewn. In re Johnson (1881), 20 Ch.D. 389, referred to by the Chancellor in the Court below, was decided under the statute of Elizabeth respecting fraudulent conveyances, and upon facts quite different from the facts existing here, and upon principles of law not applicable.

W. M. Douglas, K.C., and W. C. Brown, for the defendants. It is not suggested that in obtaining the deed there was any fraud, misrepresentation, or undue influence, nor any importunity or coaxing or domination. The daughters took charge of the farm, but they did not occupy any fiduciary relationship towards the father in the way of exercising any influence or domination over him; he was not a man to be influenced or dominated. There is abundant evidence that at the time of the execution of the deed the father was of clear mind, memory, and understanding. There are two or three instances of alleged eccentricities set up by the plaintiff, but there is nothing to weaken the evidence of the medical men, which is to be highly regarded: Russell v. Lefrançois (1883), 8 S.C.R. 335; Wilson v. Wilson (1875), 22 Gr. 39. The arrangement was not only a provident one, but was based upon good consideration, and, having been fully performed as to the father and partly as to the mother, cannot now be disturbed. The mother and the sister Elva are entitled to retain and insist upon the benefits which they get under the agreement. The relationship of parent and child does not v. itself imply a fiduciary relationship: Trusts and Guarantee Co. in Hart (1901), 2 O.L.R. 251, 258, (1902), 32 S.C.R. 553, 568. The action is not properly constituted; the plaintiff has no status. McEvoy, in reply.

June 5. Moss, C.J.O.:-As I am of the opinion that upon the facts of this case the appeal should be dismissed, I do not consider it necessary to enter upon or deal with the question of the constitution of the action as to parties or otherwise.

The point was not alluded to in the judgments of the Courts below, nor taken in the reasons against the appeal.

On the other grounds I concur in the conclusion that the appeal fails, and must be dismissed with costs.

OSLER, J.A.:-The judgment of the Divisional Court deals with the case, both on the facts and on the law to be applied to them, in a manner which is, to my mind, entirely satisfactory. I can add nothing beyond a reference to the case of Armstrong v. Armstrong (1868). 14 Gr. 528, which supports the transaction complained of. I think that the appeal should be dismissed with costs.

MEREDITH, J.A.:-If the transaction in question had been attacked by David Empey, in his lifetime, I can have no manner of doubt that it ought to have been, and would have been, set aside. The deed in question conveyed all that he had, and was entirely voluntary. The grantees had no legal claim upon him for services rendered or otherwise. It was sought and obtained by them from him in his old age and much impaired mental and physical health and strength; and after he had sustained an injury, by being thrown from his horse, which injury for some length of time at least affected his mind so that he was incapable of transacting any business--was out of his mind; but from which he seems to have made a fair recovery. At the time when the transaction took place one of the grantees at least occupied both a confidential and fiduciary position towards him; she was his agent acting in the management of his affairs under a very wide power of attorney made more than a year before; and she was one of his daughters, residing with him. The deed in question was procured by her; and it and the agreement in connection with it must have been prepared upon her instructions. It can make no difference that the solicitor she employed to prepare the writings had once acted in some litigation for him. The evidence as to the execution of the deeds is of a very meagre and quite unsatisfactory character; and was deliberately left so, by the defendants abstaining from adducing

C. A.

1907

EMPEY

V.

FICK.