was begun on 18th May, 1904. The bridge was repaired during the early autumn of 1904. Plaintiff has not shewn that any actual loss or damage accrued to him by reason of the condition of the bridge; the whole damage of which he complains seems to have been, according to his evidence, from the destruction of the street in front of his lot by the stream and the water which, he complains, came down upon him from the axe factory. . . The lots are low lots, subject to be flooded by water from the hills behind them, as well as by that from the blocking up of the channel of the stream in front of them, and I am unable to find that defendants are liable to plaintiff for what has happened.

Action dismissed with costs.

JUNE 26TH, 1905.

DIVISIONAL COURT.

EDWARDS v. IMPERIAL LIFE ASSURANCE CO. OF CANADA.

Life Insurance-Forfeiture of Policy-Non-payment of Premium-Agent-Notice-Waiver.

Appeal by plaintiff from judgment of STREET, J., dismissing action upon insurance policy for $1,000 on the life of James Henry Edwards of Hamilton. A premium was in arrear and unpaid at the time of the death of the assured. Plaintiff contended that an arrangement between her (as beneficiary of the policy and representative of the assured, her husband, who was absent) and the agent of defendants, by which the latter was to notify her of premiums when due, was sufficient to prevent, defendants from exercising right of forfeiture for non-payment, and that defendants had, by demanding payment of a premium after default, treated the policy as being in full force.

W. S. McBrayne, Hamilton, for plaintiff.

J. B. Holden, for defendants.

The judgment of the Court (FALCONBRIDGE, C.J., ANGlin, J., Magee, J.), was delivered by

MAGEE, J.-I see no reason to interfere with the judgment appealed from. The plaintiff probably placed too much.

reliance on a continuance of the solicitude of the company's agent, which had been evinced during 1903. It was unfortunate for her that the company only paid 6 per cent. commission on the subsequent premiums as against 65 per cent. during the first year. But for the reduction it is probable she would not have been allowed to let the policy lapse.

She knew, however, when the premium was payable, even if she did not receive the written notice which the agent says was sent her, and the verbal notice which he says he gave. Even if he did promise, as she asserts and he denies, to notify her before the premium became due, she was not misled or prejudiced by any failure on his part to do so if there was such failure. The premium was not payable upon or after notice, but at a fixed date, which she was aware of.

By its terms the policy became void by reason of nonpayment within one month of the premium due 1st January, 1904, after which, before reinstatement, the company would require a certificate of good health and payment of the premium with interest.

The letter of the company to the agent of 31st May, 1904, is by no means a waiver of the lapse, but rather the contrary. The notice sent by the agent to plaintiff on the same date, notifying her that the July premium would fall due on the policy, expressly says, "if in force." The agent's letter to her of the same date, if not asserting an existing lapse, can not be said to waive one. The plaintiff did nothing till 2nd July, after the husband's death, and then made no attempt to pay the January premium, but gave a note for the July premium. At that time the payment of either or both premiums would not revive the policy; both parties being in ignorance of the death: Pritchard v. Merchants, etc., Society, 3 C. B. N. S. 622; Stewart v. Freeman, 87 L. T. N. S.; Manufacturers Life Ins. Co. v. Gordon, 20 A. R. 309; MeGeachie v. North American Life Assurance Co., 23 S. C. R. 148, affirming the judgment in 20 A. R. 151.

The fact that the company had not marked the policy off their books till after action, has no bearing. It was not customary to do so till after the period of possible reinstatement had gone by, and at all events the condition of their books was not known to the plaintiff, and she could not have been misled by it: Manufacturers Life Ins. Co. v. Gordon, 20 A. R. 309; Acey v. Fernie, 7 M. & W. 151.

The authorities cited for the plaintiff unfortunately do not help her in the state of facts here.

The appeal will be dismissed with costs.

JUNE 26TH, 1905.

DIVISIONAL COURT.

BASSO v. GRAND TRUNK R. W. CO.

Master and Servant-Injury to Servant-Death-Negligence -Railway-Signals-Warning-Findings of Jury.

Motion by defendants to set aside verdict and judgment for plaintiff for $1,000 in an action for negligence, tried before ANGLIN, J., and a jury, and for a nonsuit or judgment for defendants on the findings or for a new trial.

Plaintiff's son, Francesco Basso, a boy of 17, was engaged by defendants to assist in unloading a gravel train between Callendar and North Bay. Upon the first day of his employment he fell from one of the flat cars upon which the gravel was loaded, and died on the same day from the injuries which he sustained. The jury answered questions in favour of plaintiff, finding that there was negligence in starting to lay a cable for unloading the gravel without a warning to inexperienced workmen. Defendants contended that there was no evidence of negligence to go to the jury. and that some of the findings were unreasonable, and that the result of the findings was that judgment should be entered for defendants.

The appeal was heard by FALCONBRIDGE, C.J., BRITTON, J., MAGEE, J.

J. P. Mabee, K.C., for defendants.

George Ross and J. M. Godfrey, for plaintiff.

MAGEE, J.:—If the injuries were received, as plaintiff's witnesses say, by the deceased being thrown from the car owing to the train suddenly and without warning making a jerk or movement for a few feet before finally starting north to pay out the cable, and while the deceased and the other workmen were engaged at the outer edge of the flat car uncoiling the cable thereon, the judgment would be justified.

At the trial defendants maintained that it could not so have happened, for there was no such jerk or movement

before starting, and, moreover, the injuries were received after the cable had all been paid out instead of before.

The great contest was on this latter point.

Defendants call 9 witnesses, of whom only 4 profess to have seen any one fall. Of these 4, one says 2 men fell off the car and therein corroborate plaintiff; and the other 3 only saw one man fall, although both men who are said to have fallen off were close together. One of these 3, McLennan, the only one who was not employed on the train, could not say whether the cable was then uncoiled or not.

Excepting among the Italian relatives or fellow labourers. of the deceased who took him to the side of the track, and then had to resume their own work on the train, singularly little attention appears to have been paid to the incident, and the foreman did not even miss the young man from his work. Giving all the witnesses credit for a desire to tell their honest belief, one could understand that the occurrence did not impress itself upon the English speaking members of the train crew who were engaged at their own work, as it did upon the friends of the deceased.

Then all the witnesses for the defence were asked as to the jerking or moving of the train and as to signals, and, according to them, everything worked with the most desirable precision. They speak of one stop to let the men begin, then one start for paying out, and one stop at the end of the cable, as all that occurred before they began to pull the gravel off with the plough, and these all at proper signals, and the start with proper warning. The brakesmen indeed say they heard both the whistle and bell, although the enginedriver and the conductor only speak of the whistle.

The line of defence was that there was only that one starting, and that there was no other movement of the car for a short or any distance. But there was some evidence of other movements of the car from Cuthbert and possibly Newey, witnesses for the defence. Cuthbert speaks of the car going north for about a car length after starting to unload the cable and then stopping, and Newey speaks of the car going north of where the accident happened. There is no explanation of one statement made by plaintiff. The train was being pushed north, and consisted of 14 gravel cars and the flat car on which the plough was with the cable coiled around

it. It proceeded without stopping until it came to the place where the gravel was to be taken off and where there is a siding. The cable was only long enough for 8 cars. The defendants' counsel on cross-examination asked the plaintiff: "That is why 6 cars were left off?" and was answered "Yes." No reference whatever is made by any witness for the defence to their taking off these cars. One of the brakesmen, Armstrong, says that when the train started after the first car-length of the cable had been thrown off, he was on the train between 2 and 3 cars from the engine, but could not say exactly what car, and thought it was about the centre of the train. This statement would accord more with a train of 8 cars than one of 14.

It is, perhaps, too much to assume from this that the shunting of the 6 cars must have taken place before the cable was paid out, but, if it did, one could readily understand that disturbance of the other cars might have been caused, and, if so, there is no evidence that warning was given, except on the one final starting. The plaintiff's witnesses heard no warning, and 5 of the defendants' witnesses heard none though possibly this is made up for by the more acute faculties of the two brakesmen who also heard the bell.

The matter was for the jury, and, reading the evidence, I cannot say they have come to a wrong conclusion. The learned trial Judge, who saw and heard the witnesses, was apparently impressed with the honesty of those called for the plaintiff.

The first answer of the jury shews that they adopt the plaintiff's statement as to the time. If it occurred at the start it must have been owing to the preliminary jerk or movement and not the final or actual start; for otherwise the young man would have been run over.

The charge of the learned Judge in dealing with the fourth question treats the preliminary movement and the start as forming one of the two periods in difference, and it is manifestly in that sense that the jury make the 5th answer after correcting it to shew they did not mean the start 4 miles south.

As to the reception of the evidence of a witness in reply, which, although tending to contradict the state of facts set up by defence at the trial and not before in the pleadings, was also, mainly and practically, corroborative of plaintiff's