person upon whom the duty is cast to provide flooring in a case
like the present, where there are several contractors, none of whom
undertake to erect a complete building, but are only concerned
in the construction of parts. There is the further objection, to
which the learned trial Judge gave effect, that on a literal reading
the duty of providing temporary flooring is confined to the first
floor. The Divisional Court were of a different opinion. In view
of all these considerations, it can hardly be said that the nature
and extent of the duty is so clearly, set forth that those to be affected
by it are left in no doubt as to its meaning. Penalties are im-
posed for a breach of the provisions on the by-law, and the rule
of construction in such cases is thus stated by Brett, J., in Dicken-
son v. Fletcher (1873), L.R. 9 C.P. 1, at p. 7: "Those who contend
that the penalty may be inflicted must shew that the words of the
Act distinctly enact that it shall be incurred under the present
circumstances. They must fail if the words are merely equally
capable of a construction that would, and one that would not, in-
flict the penalty." But, assuming the duty to be clearly imposed,
it had not arisen in respect to a floor on the eighth storey. The
obligation is to place a temporary floor "as each storey is built."
The evidence shews that as regarded the work to be done by the
appellants, the eighth storey was not built. It was still in process
of construction. The riveters had not done their work, and, in
order to do it, it was necessary to have in place and use a scaffold
which, with the riveters standing upon it in the performance of
their work, rendered it impossible to maintain a floor at the place
where the plaintiff was, or that he could have used to stand upon
while engaged with the rope. Until the riveters had finished
their work the time had not arrived for placing a floor on that
storey. It was not built, and therefore not in the condition de-
scribed by the by-law. No breach of the by-law and no negligence
could be attributed to them in that respect. As to the seventh
floor, the evidence could not justify the jury in coming to the
conclusion that failure to place a floor there in any way led to
the accident. What led to the accident and was the real cause of
it was the plaintiff's own act in voluntarily venturing upon the
beam to do an act which he was not called upon to do.
It was
not part of his duty. He was not ordered or requested to under-
take it, and he was under no sort of compulsion, actual or im-

C. A.

1907

NORMAN

V.

THE

HAMILTON BRIDGE WORKS Co.

Moss, C.J.O.

C. A. 1907

NORMAN

V. THE

HAMILTON
BRIDGE

WORKS Co.

Moss, C.J.O.

plied, to perform it. Knowing and appreciating the danger, he voluntarily undertook the risk. According to the evidence, if he had not intervened, Shannon could have reached the rope and overcome the temporary lodgement by a safe way, and the accident would not have happened, and however unfortunate to the plaintiff the result has been, it is not a case in which he can fairly ask that the appellants should be held answerable for it.

The appeal should be allowed, and the judgment entered at the trial restored with costs, if the appellants insist upon them.

MEREDITH, J.A. Quite apart from any question of interpretation of the by-law, either as to its meaning or the persons it affects, and from any question as to the power of the municipal council to pass it, in its widest terms, for the protection and safety of workmen, the plaintiff cannot, in my opinion, recover in this action. Another workman was immediately about to do the work, in doing which the plaintiff was injured, and to do it in quite a safe manner by the use of a ladder, when the plaintiff voluntarily intervened, and offered to do, and undertook the doing of, the work, but attempted to do it without using the ladder, and in a much more dangerous manner, and was injured. There was no occasion, as far as the defendants were concerned, for such interposition, nor for the paintiff doing it without using the ladder, so that the defendants were not guilty of any neglect to provide safe and sufficient means for the performance of the work. It is quite too remote to say that they did neglect to provide other protection not needful for the doing of the work in question when regularly and properly done. If the proper workman had neglected the proper means provided for his safety-the ladder-and had voluntarily attempted to perform it in the dangerous way the plaintiff adopted, how could he recover? Less so can the plaintiff.

OSLER, GARROW and MACLAREN, JJ.A., concurred.

G. F. H.

[IN THE COURT OF APPEAL.]

LUMSDEN ET AL. V. TEMISKAMING AND NORTHERN ONTARIO RAIL-
WAY COMMISSION ET AL.

Railway Damages "Sustained by Reason of the Railway"-Timber Cut for
Construction-Trespass-Limitation of Actions-Plans not Filed.

The defendants the railway commission were incorporated by 2 Edw. VII. ch. 9 (O.), which provides, by sec. 8, that they shall have in respect of the railway all the powers, rights, remedies, and immunities conferred upon any railway company by the Railway Act of Ontario. The latter Act, R.S.O. 1897, ch. 207, sec. 42, provides that "all actions for indemnity for damages or injury sustained by reason of the railway, shall be instituted within six months next after the time of the supposed damage sustained." The defendants (the railway commission and a contractor under them), before the filing of the plans of the railway, and in the course of constructing it, entered upon the timber limits of the plaintiffs and cut timber for construction purposes. These acts ceased much more than six months before the commencement of this action, brought to recover damages for the trespass and for the value of the timber:

Held, following McArthur v. Northern and Pacific Junction R.W. Co. (1888-90), 15 O.R. 733, 17 A.R. 86, that the plaintiffs' claim was for damages sustained by reason of the railway, and was barred by the statute; and it made no difference that the commission had not filed the plans of their railway or taken the necessary steps to compensate those whose lands or interests they entered upon or affected.

Judgment of RIDDELL, J., affirmed.

THIS action was brought by Margaret Lumsden, executrix and devisee under the will of Alexander Lumsden, deceased, and John A. Booth, as plaintiffs, against the Temiskaming and Northern Ontario Railway Commission and A. R. Macdonnell, as defendants; and, upon the death of Margaret Lumsden pendente lite, was revived in the name of her executor, John I. MacCraken, and John R. Booth, as plaintiffs, against the same defendants.

The plaintiffs' claim was for damages for trespass by the defendants upon the plaintiffs' timber limits and cutting and conversion of timber thereon.

The action was tried before RIDDELL, J., without a jury, at Ottawa, on the 3rd June, 1907.

G. F. Henderson, for the plaintiffs.

D. E. Thomson, K.C., for the defendants the railway commission.

J. H. Moss, for the defendant Macdonnell.

C. A. 1907

June 4.

Dec. 31.

C. A. 1907

LUMSDEN

υ.

TEMISKAM

ING AND

June 4. RIDDELL, J.:-Alexander Lumsden was the licensee of certain timber limits under the usual form of timber license issued by the department. The defendants the railway commission were incorporated by 2 Edw. VII. ch. 9 (O.), for the purpose of building a railway through the northern part of this Province. NORTHERN The defendant Macdonnell is a contractor under them. Before ONTARIO the filing of the plans and about June, 1903, the defendants entered upon the timber limits of Lumsden and cut down certain timber -admittedly this was done in the course of constructing the projected railway. These acts continued down to a later period, but ceased much more than six months before the issue of the writ herein. Several defences were urged before me at the trial, but I need consider only one of them.

RAILWAY COMMISSION

Riddell, J.

The Act of incorporation, 2 Edw. VII. ch. 9, provides, sec. 8, that the commission shall have in respect of the railway "all the powers, rights, remedies, and immunities conferred upon any railway company by the Railway Act of Ontario." This Act, R.S.O. 1897, ch. 207, sec. 42, provides that "all actions for indemnity for damages or injury sustained by reason of the railway, shall be instituted within six months next after the time of the supposed damage sustained." The corresponding section of the Dominion Railway Act, R.S.C. 1886, ch. 109, sec. 27, was interpreted by the late Mr. Justice Street (venerabile nomen) and by the Court of Appeal in McArthur v. Northern and Pacific Junction R.W. Co. (1888), 15 O.R. 733, (1890), 17 A.R. 86. Mr. Justice Street held that such damages as indemnity is sought for in this action were "sustained by reason of the railway," and his decision was affirmed by the Court of Appeal. It is true that the Court of Appeal was equally divided; but that is immaterial in this Court. An inferior Court must follow the decision unless and until it is overruled by some Court which has power so to do.

"For the purposes of to-day this matter is concluded by authority and such authority is against" the plaintiff: The Vera Cruz (No. 1) (1884), 9 P.D. 88, at p. 91, per Butt, J.

I do not think that Mr. Henderson succeeded in at all distinguishing the facts of this case from those in the McArthur case; and, therefore, without expressing any independent opinion of my own, I shall direct judgment to be entered dismissing this action with costs.

The appeal should be direct to the Court of Appeal.

The plaintiffs (by consent of the defendants) appealed direct. to the Court of Appeal, and the appeal was heard by Moss, C.J.O., OSLER, GARROW, MACLAREN, and MEREDITH, JJ.A., on the 26th November, 1907.

G. F. Henderson, for the plaintiffs. We concede that no action. was brought within the six months, but contend that there is a difference in principle between this and the McArthur case, and that, if not, that case was wrongly decided. Under the Railway Act the mainly essential preliminaries to the construction of a railway are the filing of plans and the payment of compensation. The special Act creating the defendant commission also provides for the location of the line and approval of plans (sec. 3), and then for the conveyance of a right of way, by order in council (sec. 4), and its registration in the proper office. As already stated, these steps were not taken before the acts of which the plaintiffs complain were committed. In the McArthur case the plans had been filed, but no compensation had been paid, the defendants apparently thinking the lands to be wild lands of the Province: per Hagarty, C.J.O., 17 A.R. at p. 93. A fair reading of the judgments of Hagarty, C.J.O., and Osler, J.A., will shew that they were both influenced by the fact that the plans had been filed, and the provisions of the Railway Act had been thereby brought into force. It is true that both the learned Judges arrive at the conclusion that the Act applies where those constructing the railway have acted in good faith under what they honestly believed to be the powers given them by the statute, but both lay some stress on the fact that the defendants had taken the preliminary steps. The other Judges then of the Court of Appeal were of the opinion that the determination of compensation was a preliminary of equal importance with the filing of the plans, and that both had to be complied with before the defendants could be said to be other than mere trespassers: Corporation of Parkdale v. West (1887), 12 App. Cas. 602, 612, 613. Reference also to North Shore R.W. Co. v. McWillie (1890), 17 S.C.R. 511; Kearney v. Oakes (1890), 18 S.C.R. 148; Zimmer v. Grand Trunk R.W. Co. (1892), 19 A.R. 693; Ryckman v. Hamilton, Grimsby, and Beamsville Electric R.W. Co. (1905), 10 O.L.R. 419. Inasmuch as the defendants did not. take the steps necessary under the statute to authorize them to enter upon the lands, they cannot be heard to claim the benefit of the protecting clauses.

C. A.

1907 LUMSDEN v. TEMISKAM

ING AND NORTHERN ONTARIO

RAILWAY COMMISSION.