companies. It may with much reason be urged that there ought to be some sharply defined rule for estimating the damages recoverable for unintentional negligence which, if left at large to the sympathetic feelings of jurors, might be pressed to ruinous amounts.

On the whole, I think a nonsuit should be entered.

As already pointed out, we cannot reduce the verdict to nominal damages.

The plaintiff Hinton was injured by the same accident which was fatal to Mrs. Lett.

The case went to the jury on the question of negligence, subject to all the same objection and the same direction as were given in the other case.

The learned Judge was pressed by plaintiff's counsel to rule that the third rail was laid by defendants without authority, and that its being there was a wrongful act by defendants, aud that as the train causing the accident was on that third rail, they must be thereby liable therefor. The learned judge refused so to direct. He said that in his opinion the defendants had no right or lawful authority to lay down that rail, but that was not to be the test of liability that the question was, whether the accident was caused by defendants' negligence, and that negligence was the question for the jury.

:

We have carefully examined the 'charge, and we have fully discussed it with the learned Judge, and he has satisfied us that he did not in any way leave it to the jury as depending on the lawfulness or unlawfulness of this third rail. Its existence was remarked on as an element in considering the danger of the crossing, and properly so in my opinion, as it most probably had the effect of increasing the risk to persons crossing there: it diverged from the main line, coming much nearer to the angle of the buildings, and a train running upon it towards the station-yard would not be seen by persons crossing at so great a distance as a train running on the main track, and would be, as it were, sooner upon them.

We do not therefore think that his charge is open to the

objection urged; and even if we thought his opinion so expressed as to this third rail was wrong, we do not think we should, therefore, disturb the verdict.

*

It seems a case that we may consider as coming within the 289th sec. of the C. L. P. Act: "A new trial shall not be granted on the ground of misdirection * * unless. in the opinion of the Court, some substantial wrong or miscarriage has been thereby occasioned on the trial of the action."

If the learned Judge had actually ruled as is suggested by defendants, I think it would have been wrong. The third rail had been in use for many years with the full knowledge, and, as I think, with the acquiescence of the corporation, and the plan shewing its existence was produced from their official records, and in the absence of any interference by them or the Crown, I cannot understand that its user must, by itself, apart from negligence, render the railroad company responsible for an accident like this. But such was not, as we think, the direction given to the jury.

But where neither the government, under the general law, nor the corporation, had ever interfered to prevent this, I hardly see how, after many years user, the right of a private person to recover against the company for negligence in working this railway, can be made to depend on the absolute lawfulness or unlawfulness of this third track.

Being there, it may have increased the danger of the crossing, and may have called for extra care and precaution; but the mere fact of an accident happening by a train running on it cannot alone give a right of action.

There was quite sufficient evidence in plaintiff's favour to support her verdict, the damages are confessedly moderate, and we do not think we should interfere.

CAMERON, J., concurred with Hagarty, C. J., being of opinion, in Lett v. the above named defendants, that the children had no right to compensation, but doubted whether the husband had not.

In Hinton v. the same defendants, he also concurred with Hagarty, C. J.

Judgment accordingly.

[QUEEN'S BENCH DIVISION.]

LOTT V. DRURY.

Slander -Imputation of Insolvency-Actionable words—Nonsuit.

The defendant spoke of the plaintiff, a miller and grain buyer, that one of the big millers (meaning the plaintiff) had run away owing money to him and others: that he, the defendant, had come in to catch the plaintiff, but that he had gone or cleared out. At the trial a nonsuit was entered, on the objection that the words were not shewn to have been used with reference to the plaintiff's business, and no special damage was proved.

Held, that the nonsuit was wrong, for the words used cast an imputation upon the solvency and financial standing of the plaintiff, and it was for the jury to say whether they were spoken in reference to his business, and calculated to injure him therein.

SLANDER of the plaintiff in his trade and business as a miller and grain buyer, the words being to the effect that one of the big millers-naming the plaintiff as the one indicated—had run away owing money to defendant and others that defendant had come on to catch the plaintiff, but that he had gone or "cleared out."

The case was tried at Barrie, before Burton, J. A., jury.

and a

It was proved that the plaintiff carried on business as a miller, grinding for farmers, and buying and selling grain: that he had dealings with defendant, who was pressing him for payment of a debt: that defendant stated that the plaintiff, a big miller, naming him as such, had run away— had cleared out, &c.

No special damage was proved with any clearness.

It was objected that there was no case to go to the jury: that the words complained of were not used in reference to the business or professional capacity of the plaintiff'; and that he was confined to special damages.

73-VOL. I O.R.

The learned Judge ruled that the words were not shewn to have been spoken, as alleged, in reference to the business or occupation of the plaintiff, and that there was no evidence for the jury of special damage, and a nonsuit was entered.

November 23, 1882. Lount, Q. C., moved to set aside. the nonsuit.

November 29, 1882. Lount, Q. C., supported the order nisi. The words certainly affected the plaintiff's business status, and are therefore clearly actionable, and the Judge was wrong in his ruling, and the nonsuit should be set aside: Davis v. Lewis, 7 T. R. 17; Jones v. Littler, 7 M. & W. 423.

McCarthy, Q. C., contra. The words were not defamatory. A late case is Miller v. David, L. R. 9 C. P. 118. Then see Doyley v. Roberts, 3 Bing. N. C. 835, where they were not held actionable. See also Lumby v. Allday, 1

Cr. & J. 301.

December 30, 1882. HAGARTY, C. J.-In Lumby v. Allday, 1 C. & J. 301, some very abusive words, imputing incontinency, were spoken of plaintiff, who was a clerk in a gas company, and it was charged that the words were designed to shew that he was unfit for his situation, and of bad character, &c. A nonsuit was asked and refused, and the jury were told to find for the plaintiff if they thought the words might probably have occasioned the loss of his situation, and the plaintiff had a verdict. Leave was reserved.

A rule to set aside the verdict and enter a nonsuit was discharged, because it was held there could not be a nonsuit where the facts in the declaration were proved, but they granted a rule to arrest judgment. This technical rule as to nonsuiting does not now exist.

Bayley, J., said: "Every authority which I have been able to find, either shews the want of some general requisite, as honesty, capacity, fidelity, &c., or connects the imputa

tion with the plaintiff's office, trade, or business." He held the action not maintainable, because there was no imputation on his conduct as a clerk, or implying the want of any qualities a clerk should possess.

Ayre v. Craven, 2 A. & E. 2, quotes this rule of Bayley, J., and on demurrer a declaration was held bad, as not shewing that the scandalous conduct (adultery by defendant, a medical man,) was imputed to him in his profession, and did not set forth in what manner it was connected by the speaker with that profession.

Doyley v. Roberts, 3 Bing. N. C. 835, was an action by an attorney charging that words declaring that he had defrauded his creditors and been horsewhipped off the racecourse, were spoken of him of and concerning him in the way of his profession and business. Parke, B., left it to the jury, who found, in answer to questions, that the words were not spoken of him in his business of an attorney, but had a tendency to injure him morally and professionally, but negatived special damage attempted to be proved, and a verdict was entered for the plaintiff, with leave to move. After argument, Tindal, C. J., said: "There was evidence to go to the jury whether or not the words were spoken of the plaintiff in his profession, and that question the Judge was obliged to leave to the jury."

The jury found they were not spoken of him in his business of attorney. The Court therefore arrested judg

ment.

Miller v. David, L. R. 9 C. P. 118, was on demurrer to a declaration. Judgment was for defendant, the words not being in themselves defamatory, nor connected by averment or implication with plaintiff's trade, and the alleged damage not being the natural or reasonable consequence of the speaking of them.. The Court say that the language of Bayley, B., in Lumby v. Allday, has since been repeatedly approved of.

Jones v. Littler, 7 M. & W. 423, (decided in 1841,) is the nearest to the present case. The plaintiff was a brewer: the words were to the effect that Mr. Jones had been in a