affected as a result of his injury, and the jury might consider that for that reason he was not able to give so full an account of the occurrence and what led to it as would otherwise be expected, and that in that respect and in drawing inferences the case might to some extent be treated as if the injury was fatal, and the injured man was not here to tell his story. It may here be noted that by clause 39 of the conditions of the defendants' agreement with the city corporation, made binding by 55 Vict. ch. 99 (O.), it is provided that cars shall only be stopped clear of cross streets. Whether the plaintiff in a given case has failed to prove that the conduct of the defendant, though negligent, was a cause of the injury is one question, and whether it has been shewn that the plaintiff has himself contributed to that injury is another question. The two have not always been kept distinct, and it is often very difficult to keep them so. But before a case can be withdrawn from the jury on the former ground, the Judge must decide that there is no evidence on which, if believed, the jury might reasonably infer negligence of the defendant to which the plaintiff's injury is attributable; while before he withdraws it on the latter ground, he must decide that on the evidence and the inferences therefrom, which are both unquestioned by the plaintiff, the jury must, if submitted to them, find contributory negligence of the plaintiff: Jackson v. Metropolitan R. W. Co., L. R. 3 App. Cas. 197; Bridges v. North London R.W. Co. (1872), L. R. 7 H. L. 213; Dublin, Wicklow and Wexford R. W. Co. v. Slattery, 3 App. Cas. 1155. In the present case it is not here a question of new trial, but, as in the Slattery case, of the right of the defendants, in a case in which the issues were to be tried by a jury, to have judgment entered for them irrespective of the jury. On the first ground open to the defendants, that there was not sufficient evidence to go to the jury that they were at all negligent, little need be said. There was evidence from which, if unanswered, the jury might infer negligence in placing an intoxicated man in charge of the car, in excessive speed, and failure to slow the car and have it under control when approaching persons on the street; in failure to warn the plaintiff, by gong or otherwise, when seen going apparently unconsciously into danger; in failure of the D. C. 1907 TINSLEY บ. TORONTO R.W.CO. Magee, J. D. C. 1907 TINSLEY v. TORONTO Magee, J. motorman to keep watch for waiting passengers and persons on the highway; in failure to apprise one lawfully using the highway in manifest reliance upon the motorman stopping in accordance with his duty and constant custom that he was departing from such custom; and in the motorman neglecting to stop for passengers, though it is questionable if the plaintiff could complain of that, except in so far as a stoppage would have prevented the injury. The fact that the jury, after hearing the evidence on both sides, did not infer all these matters of negligence does not help the defendants if the jury might have inferred them on the evidence for the plaintiff. On the second ground here open to the defendants, that there was not sufficient evidence to go to the jury that any negligence which the jury might infer was so connected with the plaintiff's injury that it could be attributed to such negligence, I think the answer must be that there was. In the Slattery case Lord Cairns, at p. 1167, after referring to the facts, said: "Now, I cannot say that these considerations ought to have been withdrawn from the jury. I think they should have been submitted to the jury, in order that the jury might say whether the absence of whistling. on the part of the train or the want of reasonable care on the part of the deceased was the causa causans of the accident." If in his Lordships statement of facts preceding these words we substitute a flurried state of mind not to miss the half-hourly car for a like flurry on behalf of a friend, and a gong for a whistle, and add to the failure to look for the train before stepping on the track, a reasonable belief that it had stopped, I cannot substantially distinguish the cases: see also Green v. Toronto R.W. Co. (1895), 26 O.R. 319. The case of Phillips v. Grand Trunk R.W. Co. (1901), 1 O.L..R. 28, was referred to as shewing that the defendants' alleged negligence there in running an engine backwards without warning to plaintiff was not the cause of the injury, but the plaintiff's negligence in walking along the track; but there the late Mr. Justice Street said if the plaintiff had been crossing the track it would have to go to a jury. On the third ground here open to the defendants, that on the evidence for the plaintiff, unquestioned by him, the jury must infer contributory negligence, it appears to me the defendants should fail. It was said that he had no right and no one has any right to rely upon the cars stopping in accordance with the rules of the company and their constant custom, and that it is such negligence if he does do so, and suffers injury in consequence, as makes him the author of his own wrong. In Toronto, as in other large cities, there are points of congested traffic where the cars invariably stop at intersections of streets whereon are the defendants' lines. Thousands of pedestrians and drivers, relying upon that stoppage, pass and repass in front of the cars with safety. Unless they did so, the streets would become blocked. If a driver, whose horses and waggon are, perhaps, twenty feet long, in reliance upon the car stopping there, starts along the intersecting street across the track, and the rear part of his waggon is caught by a car which, in defiance of rule and custom, and without warning, keeps on its course without stopping, must a jury say that he did not act reasonably and was negligent. I am satisfied no jury of of reasonable men would say so. And yet if that driver would be justified in his confidence, it has no higher basis than the rule and custom of the defendants. Had it not been for that he would not think of risking himself on the ordinary rules of traffic (not to speak of the right of way given street cars) in front of a car which would so manifestly reach him. Almost every moment mothers with children and business men engaged in conversation act upon the like faith. Then if he or they would be entitled to rely upon the rule and custom, why shall this plaintiff be told that he must not? Is it because of the more crowded condition of the streets in the one place than in the other? There are all degrees in quantity of traffic, and where is the line to be drawn, as a matter of law, so that we can say to a jury on this side you must find for the defendant, and on that side you may find for the plaintiff. I can conceive of evidence being given that in outer districts it is not customary for cars to adhere closely to the line of the street for a stopping point, and that they may sometimes over-run half the width of the street or more. But here there is no such evidence, and though jurors must be allowed to infer that street cars, no more than other vehicles, can be held to an exact line, it would be a question for them whether it had been reasonably adhered to and whether the plaintiff should be prepared for a particular 32-VOL. XV. O.L.R. D. C. 1907 TINSLEY v. TORONTO R.W.CO. Magee, J. D. C. 1907 TINSLEY V. TORONTO Magee, J. variation. Here, however, on the evidence for the plaintiff, there was no intention of stopping, and the stopping place had been overshot at full speed. If, then, the law cannot fix the degree of traffic under which a plaintiff would not be entitled to rely upon the defendants' rule and constant custom, it must be left to the jury to say whether, under the particular circumstances in each case, he was so entitled. If it does not depend on the degree of traffic, then upon what else short of a warning would it depend, and here there was no warning. It must depend upon the fact of the rule and custom. The case of 4 Times L. R. after being set Allen v. North Metropolitan Tramways Co. 560, was referred to, where a nonsuit, aside, was restored. But there the plain tiff, being on a bridge, had started across two or three steps, and was struck by a tramcar; he had not looked in its direction at all, and he said it was usual for the tramcars to stop on the bridge, and he expected this one would do the same. The report is very short, and it does not appear how he expected it if he had not looked, nor on what part of the bridge it usually stopped. There does not appear to have been any rule for stopping nor that the custom was invariable. The Court held that he walked into the tramcar. Here the plaintiff had his back partly turned to the car. And, which strongly differentiates that case from this as to the right to go to the jury, there was no chance for the driver to warn or avoid him. Here the jury might find that the motorman could, by warning the plaintiff or retarding the car, have avoided the accident and his negligence therein would neutralize the plaintiff's negligence. That case, in the sudden stepping upon the track, resembles Danger v. London Street R.W. Co. (1899), 30 O.R. 493, and O'Hearn v. Town of Port Arthur, 4 O.L.R. 209. In Gosnell v. Toronto R.W. Co., 4 O.W.R. 213, where the plaintiff said he relied on the car slackening speed, and merely said they "generally always" did so, the Judge found no negligence in the motorman. In Preston v. Toronto R. W. Co., 13 O. L. R. 369, the rule as to sounding a gong and its non-observance were a material element. In North-Eastern R.W. Co. v. Wanless (1874), L.R. 7 H.L. 12, the plaintiff was held excused from vigilance by the rules and customs of the company as to a gate for carriages being left open, although there was a separate gate for foot passengers, which it does not appear was open, and by his being, in consequence, in a position "more or less embarrassing." In the Slattery case, it was considered by most of their Lordships that the absence of the usual whistling might reasonably have been considered by "the jury to have influenced the course taken by the deceased, and thus caused the accident": Lord Penzance, at p. 1174; and his Lordship added: "I think it impossible to deny this; it might be that, being accustomed to the station .. he expected the whistle as usual, and not hearing it, did not think the train was coming; or it might be that had the whistle sounded it would have awakened him to his danger in attempting to cross the line, though his mind was so occupied with the desire of getting his friends across to where he stood that he failed to hear the sound of the wheels, and did not look up the line, as he ought to have done, to see if a train was coming." In Skelton v. London and N.W. R.W. Co., L.R. 2 C.P. 631, the plaintiff relied upon the fact of a gate being usually fastened by the company when their line was not clear, but it was shewn it was not invariably so, and that the deceased knew the line was not clear. In Cranch v. Brooklyn Heights R.W. Co., 107 App. Div. N.Y. 341, the plaintiff crossed in front of a train which she believed would stop in accordance with custom, and she was injured, and the verdict in her favour was upheld in appeal. Jenks, J., in delivering said at p. 343: "This the judgment of the majority of the Court, It may be and probably is the fact that, the plaintiff knowing, as he thought, that the car would stop, his mind momentarily and automatically, if I may use the term, dropped any care upon that subject, and became set for the instant upon the necessity of getting D. C. 1907 TINSLEY V. TORONTO R.W.CO. Magee, J. |