credit to it. Few indeed are the accidents which happen for which no one is blameable; great indeed would be the increase of accidents if mankind generally did not recognize this fact and act accordingly. Even those of feeble intellect. know, and instinctively act upon the knowlelge, that the greatest danger of accident arises from the negligence of some one. What would become of the defence of contributory negligence if in the eyes of the law every one had a right to act upon the assumption that no one would be guilty of any negligence towards him? Every one is bound to take ordinary care to avoid being injured through the negligence of others, and if any one be injured through the negligence of another, no action lies if he might by the exercise of ordinary care have avoided the injury.

It was also contended that it was enough for Nairn to have exercised his sense of hearing, and that not having heard the approaching danger he was justified in assuming that there was none, even in a place of constantly recurring dangers; that he was justified not only in failing to look but also in passing as he did close behind the car, instead of making a sufficient detour to enable him to avoid being struck if the car moved. But there is no evidence that he or his companion exercised even that sense as a safeguard, I mean consciously listened for sounds of danger; they could not have done so, for it would have been easier, quicker, and far better to have looked; they must have been absorbed in the business they had in hand or in conversation, and have neglected every safeguard. But, however that may be, it is surely not enough to exercise the far less useful sense-less useful in the circumstances of this case-where there is absolutely nothing to prevent an instantaneous use of the better sense, and where it can be exercised without any conscious exertion. The primary purpose of sight in all animals is self-preservation; can it be ordinary care in the midst of dangers to act in any degree as if such a sense had not been given to us; to act as Nairn and his companion did as if blind in so far as the danger in question concerned him?

It is not necessary to go over the cases again; they are becoming somewhat threadbare; what is needed is an authoritative decision of the plain and constantly recurring question whether one who neglects all ordinary safeguards, without any excuse for so doing, in passing from a place of known safety to a place of known danger, is, if injured, entitled to damages if a jury can be persuaded to award them.

But it may be pointed out that in Davey v. London and South Western R. W. Co., 11 Q. B. D. 213, 12 Q. B. D. 70, the plaintiff was nonsuited, and although that case has been to some extent riddled, it yet shews a majority of the Judges supporting the nonsuit, after giving the plaintiff credit for the recantation of the Master of the Rolls.

But it was a case obviously much more favourable to the plaintiff than this case. Indeed, having regard to the open gates and the conduct of the gatemen, it might, in this province, be difficult to perceive why the case should not have gone to the jury; it can hardly be that the open gates were an invitation to those who were driving and yet not for those who were on foot; if it indicated safety to drivers, the road must have been at least equally safe for those who were on foot. In that case the plaintiff was exercising his right to pass over a highway; and there were other circumstances than the two I have mentioned in the plaintiff's favour not occurring in this case. In the Slattery case, 3 App. Cas. 1155, the plaintiff was procuring a ticket for a friend, an intending passenger, at a railway station, and was obliged to cross the track for that purpose; there was a train standing between him and the track of the in-coming train; it was night and the light that uncertain one which is apt to be a trap to the sense of sight, making it less a safeguard than others which in daylight would be incomparable to it; before coming to a place from which the in-coming train could be seen, he was within 6 feet of the track upon which it was running. The man was alone in crossing and recrossing the tracks, and his actions and purposes were largely matters of inference only. He seemed to have been in anxiety, and was probably somewhat flurried, lest his friend should lose his train; it was about midnight; it was in Ireland, where the English system of railways prevails, differing much from that in this country; there being a raised platform on each side of the line usually of considerable height to enable passengers to step into the carriages; it is usually no trifling exertion to get down on the tracks and up again in crossing. The man had got down at the end of the standing train and was crossing when struck down by the express train. Those who have been in any such position, and those who have ever been in a railway vard among moving trains or engines in the deceptive natural light of the night there, and in the even more deceptive and sometimes bewildering artificial lights, moving and stationary, of such a place, will readily recog nize that the man was in a position of imminent danger when first in a position to see the in-coming train, and if in the emergency he took what proved to be the more dangerous course, that would not prevent the plaintiff from recovering.

If he had chosen the other course and turned back, and the standing train had happened to move backwards, as for various reasons it might, and he had been injured by it, it would have been said that he was negligent in not going on; that he would have crossed it safely if he had: see Jones v. Grand Trunk R. W. Co., 16 A. R. 37, and 18 S. C. R. 696. Can any one read the report of Slattery's case without being convinced that if the accident had happened in the daylight the action would have failed? As it was, the Irish Court of Appeal was equally divided, and in the House of Lords three of the ablest of Judges dissented, and the Lord Chancellor shews plainly that a very little would have turned him. Can the case be read by any impartial person except as, on the facts of this case, in favour of the defendants?

The last contention of the plaintiff ought not perhaps to be passed over in silence. It was that when at least 10 out of 12 men have declared that Nairn was not guilty of any contributory negligence, it could not be said that there was no reasonable evidence that he was not. But all men are liable to be unreasonable, and jurors are no exception to the rule; and where the feelings, as for instance of pity or hatred, and not the judgment, prevail, men are apt to be unreasonable, and the more so in numbers together than if silently separate. It is not necessary to search history for this fact; it is within the knowledge and very likely within the experience of all of us. Jurors are sometimes influenced by and their verdicts given for such reasons as are referred to by Lord Blackburn in Slattery's case; and one of our most experienced Chief Justices has felt himself bound to record the statement that in such a case as this leaving it to the jury is simply to direct a verdict for the plaintiff. Who can tell that, actuated by evidence which does not appear on the reporter's notes of the trial, and the effect of which it is impossible for those who were not present at the trial to quite appreciate the silent pitiable evidence of the widow and three helpless, fatherless children in deepest mourning, drawn up before the jury during a somewhat protracted trial-the jury were not quite willing to be unreasonable as long as they could in any way protect the widow and the fatherless from want and suffering arising from the untimely taking off of the husband and father? In any case the question is one for the Court and for the Court alone.

The plaintiffs having by their own case established contributory negligence on Nairn's part, as I have indicated, I am obliged to give effect to the second ground of this motion and to dismiss the action, but it will be dismissed without costs; the defendants failed upon the other ground, and the costs were very largely increased over the trial of it.

THE

ONTARIO WEEKLY REPORTER

(TO AND INCLUDING JULY 29TH, 1905.)

VOL. VI.

TORONTO, AUGUST 3, 1905.

No. 9

CORRECTION.

LONDON AND WESTERN TRUSTS CO. v. PERE MARQUETTE R. W. CO.

On p. 325, ante, "the Otteson case" is referred to three times. 66 For Otteson" read "O'Hearn." The case is O'Hearn v. Town of Port Arthur, 1 0. W. R. 373, 4 O. L. R. 209.

FALCONBRIDGE, C.J.

CHAMBERS.

RE DEY v. MCGILL.

Division Courts · - Jurisdiction

JULY 14TH, 1905.

Ascertainment of Amount

Involved Action against Executors de son Tort Declaration of Representation - Preliminary to Jurisdiction.

Motion by defendants for prohibition to the 4th Division Court in the county of Simcoe. The action was brought against defendants as executors de son tort of Hugh Milloy, of the township of Nottawasaga, to recover the amount of an account rendered, the amounts of two loans and interest, the amounts of two promissory notes and interest, and other sums, altogether amounting to $165.97, and damages against defendants for wrongfully interfering with and selling and otherwise converting the chattels and effects of the deceased.

G. Grant, for defendants.

N. B. Gash, for plaintiff.
VOL. VI O.W.R. NO. 9-23

FALCONBRIDGE, C.J.: The Judge in the Division held that defendants had so intermeddled with the estate of deceased as to render them liable as executors de son tort. Although they did this with good intent and at the request of the widow of deceased, no fault can be found with this part of the judgment. The amount sued for brings the case within the enlarged jurisdiction of the Division Courts under the provisions of sec. 72 of the Division Courts Act (R. S. 0. 1897 ch. 60), and a question arises under sub-sec. (d), "where the amount or original amount of the claim is ascertained by the signature of the defendant or of the person whom, as executor or administrator, the defendant represents." C'an defendants be said to represent deceased until they have been declared by the Court to be executors? Is it the intention of the statute that in one and the same proceeding the declaration is to be made which alone can make a defendant liable, and before that point is reached defendant is to be clothed in advance with the representative character so as to confer jurisdiction on the Court to make the declaration and pronounce the judgment against him? I think not. Order made for prohibition without costs.

DIVISIONAL COURT.

JULY 17TH, 1905.

HOPKINS v. BARCHARD.

Master and Servant-Injury to Servant-Consequent DeathNegligence-Defect in Ways-Contributory NegligenceCourse of Employment-Sunday Work-Jury—Nonsuit.

Appeal by plaintiff from judgment of ANGLIN, J., 5 O. W. R. 246, dismissing the action.

J. M. Godfrey, for plaintiff.

E. E. A. DuVernet, for defendants.

The judgment of the Court (FALCONBRIDGE, C.J., MACMAHON, J., CLUTE, J.), was delivered by

FALCONBRIDGE, C.J.:-It has been found by the jury that there was no negligence on the part of defendants personally causing the accident, but otherwise the case is at large, as they could agree in answering no other question. Personal negligence of defendants being thus negatived, I do not find