D. C. 1907 TINSLEY v. TORONTO R.W.CO. going at an excessive rate of speed, and this is important in considering the question whether the motorman had the car under proper control. There was abundant evidence of negligence on the defendants' part. Then was there evidence of such negligence on the plaintiff's part as would prevent his recovering. The plaintiff was rightly on the street and had the right to cross it, and not only was it the duty of the motorman to keep a look-out, but, under the circumstances, to stop at this corner, and the plaintiff might reasonably presume he would do so, and that he could safely cross the street in front of the car. The case of Cranch v. Brooklyn Heights R.W. Co. (1905), 107 N.Y. App. Div. 341, where the cases are collected, is strongly in point in favour of the plaintiff. In that case it was held that where it is shewn that it was customary to stop as here, the plaintiff would not be chargeable with contributory negligence because he assumed the car would stop. In every case it is a question for the jury whether or not the plaintiff acted reasonably under the circumstances: Dublin, Wicklow and Wexford R.W. Co. v. Slattery (1878), 3 App. Cas. 1155. In Preston v. Toronto R.W. Co., 13 O.L.R. 369, it was held that where there is evidence of negligence on the defendants' part by reason of the failure to take reasonable precaution to prevent accidents by ringing the gong, etc., the case must be submitted to the jury, notwithstanding there may have been acts on the plaintiff's part from which the jury might infer negligence on his part by putting himself in a position of peril. The same principle is laid down in Vallee v. Grand Trunk R.W. Co. (1901), 1 O.L.R. 224; Sims v. Grand Trunk R.W. Co. (1905), 10 O.L.R. 330; Gosnell v. Toronto R.W. Co., 24 S.C.R. 582. The case of Allen v. North Metropolitan Tramways Co., 4 Times L.R. 561, which was strongly relied upon, is quite distinguishable. There there was no rule requiring the car to stop, or anything to shew that it usually stopped there. In Skelton v London and North-Western R.W. Co., L.R. 1 Q.B. 631, notwithstanding that the gates were up, the plaintiff knew that the lines were not clear. In Stubley v. London and North-Western R.W. Co., L.R. 1 Ex. 13, the place itself was dangerous. It was not a thoroughfare as here. In Davey v. London and South-Western R.W. Co., 12 Q.B.D. 70, the accident was solely caused by the plaintiff's own negligence. In all the cases relied on by the defendants there were special circumstances which cast a duty on the plaintiff to take extra precautions. Under the circumstances the case was properly submitted to the jury. December 16. BOYD, C.-The jury have found that the company was guilty of negligence (1) for not stopping when signalled, and (2) for not having the car under control when approaching crossings. They exculpate the plaintiff, and give $800 damages. Upon a consideration of the evidence it appears to be very plain that the plaintiff walked into a place of danger. Anyone who seeks to cross a track directly or diagonally in front of a coming car must use ordinary vigilance. Here this plaintiff saw the car speeding towards the corner of College street and University avenue when it was 300 feet away, as he estimates. He was seen to be stepping off the curb and heading across the street diagonally from the south when the car was about 150 feet off, as Shepherd says; and so both moved on, he across the street and the car on the track, till he was struck by the foremost end of the car. This occurred at one in the morning, when the view was unobstructed all along College street to Yonge, and the car was moving rapidly (as all night cars run), with head light flashing, and full of people. The plaintiff admits having an unobstructed view of the car, and, indeed, says it was in full view as he passed diagonally across the street, getting closer to the track where he was struck. He says he had to go thirty feet and another thirty feet after he saw the car (sixty feet), and it was in full view of him all the time. The car he could see and he could hear, as it made a noticeable rumbling noise quite apparent. He makes no point as to the speed of the car; he says he cannot tell whether it was going fast or slow. He could have halted, he could have turned aside, even at the last moment, and avoided the impact. The car, coming at the pace it did, must keep straight on, and could not slow up instanter, as the man might have done. Why did he act so heedlessly? No excuse given except this, that he saw two people waiting for the car at the street corner, and he thought it was going to stop. It was argued as if the evidence reported him as having himself signalled to stop. That is not in the stenographic report before us; all that appears is that Shepherd at the corner gave a signal to stop (which the motorman says he did not see). The plaintiff did not give a signal, and does not say that he saw any signal given by the D. C. 1907 TINSLEY v. TORONTO Boyd, C. D. C. 1907 TINSLEY V. TORONTO other. There was no rule, custom or practice as to slowing down or stopping at crossings on these night-runs, unless on the requirement of persons getting on or getting off the cars; so that the situation comes to this: he thought, or inferred, or supposed that the car was about to slow up or stop at the crossing, but his senses, sight and hearing would inform him that the car was not slowing; against what he saw and heard, or might have seen and heard (for he was in possession, he says, of all his faculties) he acted on an assumption-in other words, he took chances of getting over ahead of the rapidly moving car and failed. Can he be said to be acting with due care? Was his conduct not (to put it in the mildest way) heedless? Was he not the victim of his own disregard of consequences? Did he not in a very distinct way contribute to his own hurt? It is not needful to say that he was most to blame; if he, in fact, contributed to the injury he cannot recover. Such seems to me to be the proper result of all the evidence given on his behalf, and his case is not bettered by the further evidence given for the defence. It follows, in my opinion, that the action should have been dismissed. As to authorities, the case of Allen v. North Metropolitan Tramways Co. 4 Times L.R. 691, appears to be very close to the facts now in hand. That case was acted on by the Court of Appeal in Follett v. Toronto R. W. Co. (1888), 16 A. R. 346, at p. 353 (see also Halifax Electric Tramway Co. v. Inglis (1900), 30 S. C. R. 256, at p. 280). My brother Mabee has gone very fully into the list of cases which throw more or less light on the general subject of accident in crossing before running cars, and I abstain from citing more. The nearest case relied on by the plaintiff is Cranch v. Brooklyn Heights R.W. Co., 107 N.Y. App. Div. 341. It is distinguishable in two respects: (1) that the plaintiff was going over the track on a private right of way, seeking the station to take a train at a highway crossing, and it was held that the plaintiff need not in such a place use the same circumspection and care as a traveller crossing a railroad track on a public highway; and (2) that the company by its manner of operating the line-i.e., being in the custom of stopping at the station created a condition of things known to the plaintiffs for sixteen years, which justified the belief that the train would not run across the highway without stopping. To counterbalance the New York case I may refer to a New Jersey case, Jewett v. Patterson R.W. Co. (1898), 62 N.J. Law 424. I follow the principle of decision in the Allen case. I would dismiss the action. It is not a case for costs. MAGEE, J. From the evidence as it stood at the close of the plaintiff's case the jury might have found that the plaintiff, when going about 12.45 a.m. on 1st January, 1907, in a northwesterly direction across the intersection of College street and University avenue, was struck partly from behind by the defendants' car going west on their north track on College street; that the plaintiff was at the time hurrying to cross the north track, so as to take passage on the car; that the car had been and was then going at an excessive speed of eighteen to twenty miles per hour, but for which the plaintiff would have had time after he first saw the car to cross the track in safety; that the motorman was noticeably under the influence of intoxicating liquor when placed in charge of the car about half an hour previously; that it was his duty under the company's rules and was the custom of all cars to stop at the east side of University avenue, eastward of where the plaintiff was struck, whenever passengers wished to get off or on the car; that the motorman could see two intending passengers waiting to get on the car there, and could see one of them signalling for him to stop; that the plaintiff had seen the intending passenger signal; that the motorman did not stop or slacken speed; that had he stopped the plaintiff would have crossed in safety; that in the direction in which the plaintiff was walking he would have his back turned partly to the approaching car, and would be going into danger if he or the car did not stop or slacken speed, as the motorman could see, and the latter had no reason from any action of the plaintiff to know or believe that the plaintiff would stop or lessen his pace or change his course or was aware of his danger; that it was, under the company's rules, the duty of and was usual for the motorman to ring the gong whenever necessary to attract attention, and it was, under these rules, his duty to slacken speed and get his car under control whenever there was reason to apprehend danger; that he did not do any of these things nor in any D. C. 1907 TINSLEY V. TORONTO R.W.CO. Boyd, C. D. C. 1907 TINSLEY V. TORONTO Magee, J. way try to warn the plaintiff; and that it was also his duty, when approaching a cross street, to reduce speed and keep the car care fully under control if there were any persons standing there or if there was likely to be anybody crossing there; and that it was also his duty, when starting after a stop, always to ring the gong to warn people on the street; and that in none of these respects to the extent I have stated them were the rules suspended at night. On the other hand, the evidence for the plaintiff also shewed that on arriving at the south side of College street, about twenty yards east of University avenue, he had looked for and seen the approaching car, then about 100 yards distant; that he then turned in the diagonal north-westerly direction and hurried to cross College street, for the purpose of getting on the car by its door on the north side; that his course would take him across the north track in front, that is west of where the car would usually stop; that he made no signal for it to stop, but, as he stepped off the curb to cross the carriage way of College street, he saw one of the intending waiting passengers signal to the car, then about fifty yards distant, to stop; that, although he had seen the car at first, and knew it was approaching University avenue, and did not know at what speed it was coming, and he was intending to get on it, and had to cross the south track first, he did not at any time after he first saw the car look towards it again, or do anything to ascertain its position, and he, without taking any precaution, stepped upon the north track, in front of the car, when it was moving rapidly only a few feet from him; that he was only thirty-one years of age, in good health, and in possession of sight and hearing, and capable of taking care of himself; that the street was well lighted at that crossing, the car had the usual head light, and was bright with inside lights, and was making considerable noise, and could readily have been seen and heard by him had he exercised his faculties; and that there were no vehicles or traffic upon the street to distract his attention, and the night was comparatively mild and soft; that his reason for undertaking to cross the track at that time was that he wished to get on the car, and he thought, when he saw persons waiting for it, that it was going to stop, and he thought that anyone would think so. He had lived most of his life in Toronto, and might be presumed to know that such was the custom. He claimed that his memory was |