1897. Statement. DIXON V. WINNIPEG ELECTRIC STREET RAILWAY CO. Before TAYLOR, C.J., DUBUC and KILLAM, JJ. Workmen's Compensation for Injuries Act-Retrospective Legislation-Limitation of Actions-Notice of Injury-Negligence. The plaintiff sued for an injury sustained by the negligence of a fellow workman. The accident causing the injury occurred in May, 1894; no notice of the injury had been given within twelve weeks, and the action was not commenced until 1st October, 1895; so that at the time of the passing of Chapter 48 of the Statutes of 1895 the plaintiff's right of action for the injury under the Workmen's Compensation for Injuries Act., 56 Vic., c. 39, had ceased to exist by virtue of section 7. By the amendment of 1895, however, this section was repealed and the following substituted therefor :-"No action for the recovery of compensation under this Act shall be maintainable unless commenced within two years from the occurrence of the accident causing an injury or death." Held, that this legislation was not retrospective and had not the effect of restoring a right of action which was gone before it was passed. The plaintiff also claimed that defendants were liable at common law under the principles applied in Smith v. Baker [1891], A. C. 325, and Webster v. Foley, 21 S.C.R. 580, but the answers of the jury showed no defect in the works or machinery or system of using the same, and the plaintiff was non-suited. ARGUED 8th February, 1897. THE plaintiff sued to recover indemnity for injuries suffered by him while in the employ of the defendant, an incorporated Company, operating a passenger railway on the streets of the City of Winnipeg, and running cars thereon by electric power transmitted on overhead wires. The plaintiff and a fellow employee were sent to a portion of the line to remove the wires from certain poles, and were informed before going, by the foreman who directed them, that the wires would be kept free from the electric current. Among the wires attached to these poles was one used by the Company to transmit a current for lighting a park. 1897. The circuit with which the latter wire was connected could also be used by the Company for mechanical purposes at Statement. the Company's works; and while the plaintiff was thus employed a current was turned on this circuit and transmitted over the electric light wire, with which, in the course of his work, the plaintiff came in contact, and in consequence he suffered serious injury. There was a device, known as a "cut-out," near the Company's works, by which the transmission of the current over the electric light wire, while the circuit was in use at the works, could have been prevented. In answer to questions put to them by Bain, J., before whom the cause was tried, the jury found that the injury was occasioned by an electric shock caused by the negligence of some person in the defendant's service having superintendence entrusted to him in the exercise of his employment; and that this negligence consisted in allowing the electric current to be turned on the electric light wire while men were employed in removing wires on the Company's lines, these men having been informed that the lines were dead. In answer to the question, "Did the electric current that gave the plaintiff the shock become connected with the wire through any defect in the works and machinery in the defendants' power house then used and occupied by the defendants?" the jury replied, “No evidence has been produced to show that there is any defect in the machinery in the power house, but the jury is of the opinion that the cut-off at the Main Street bridge should have been used while the men were removing the wires." The accident occurred on the 26th May, 1894, and in 1895 the seventh section of The Workmen's Compensation for Injuries Act, 56 Vic., c. 39 (M. 1893), was repealed by 58 & 59 Vic., c. 48, s. 2, and a new clause was substituted, under which the action could be brought at any time within two years after the occurrence of the accident and no notice was required. This action was commenced after 1897. the passing of the amending Act, and it was claimed that Statement. the plaintiff could avail himself of this amendment. The trial Judge was of opinion that the jury's answer showed no liability of the Company at common law, and that the plaintiff could not avail himself of the statute, because notice of the injury was not given by the plaintiff to the Company within twelve weeks, and the action had not been commenced within six months, from the occurrence of the accident causing the injury, as required by the seventh section of the Act; and he entered judgment for the Company. From his judgment the plaintiff appealed to the Full Court. H. M. Howell, Q.C., and J. A. Machray for plaintiff. The question is, can the plaintiff come within The Workmen's Compensation for Injuries Act, 56 Vic., c. 39, (M. 1893) as amended by 58 & 59 Vic., c. 48, (M. 1895). The accident to the plaintiff happened when the first Act was in force. There was a writ issued after the twelve weeks in which notice should have been given. Is the plaintiff bound by the provisions of section seven of the Act of 1893? The injury took place on 26th May, 1894. The amending Act was passed 29th March, 1895; it repealed sections seven and ten of the Act of 1893, and says an action shall be commenced within two years, doing away with notice altogether. Can the plaintiff get over the difficulty of want of notice? That depends on whether the second Act is retroactive In re Joseph Suche & Co., 1 Ch. D. 48; Moon v. Durden, 2 Ex. 33. Statutes of Limitation are always considered as statutes of procedure, therefore they are always retroactive in their operation. Suppose the right of action was limited to one year, and that eleven months after the accident took place an Act was passed making the limitation six months a plaintiff would be without remedy. In that case the Legislature would take away a right that was existing, why could it not revive a right which was lost? If the plaintiff cannot succeed under The Workmen's Compensation for Injuries Act, he claims to be en 1897. titled to succeed under the Common Law: Wilson v. Merry, L.R. 1 Sc. App. 326; Barton's Hill Coal Co., v. Argument. Reid, 4 Jur. N. S. 767; Smith v. Baker, [1891] A. C. 325; Johnson v. Lindsay, [1891] A. C. 371. If good machinery is badly worked then the employer is liable. If a system is badly worked then the employer is liable. Machinery must be good not only for the purpose for which it is used, but under the circumstances in which it is used. The party relying on the maxim Volenti non fit injuria must prove it. There was a defect in the system whereby an electric light wire was connected with the work in the shop while the workmen were at work on the line. A master who employs a servant is responsible for the negligence of his servant : Le May v. C. P. R., 18 O. R. 314. If there be a defective system of machinery, the master is liable : Webster v. Foley, 21 S. C. R. 580. As to the question of contributory negligence, which was negatived by the jury in this case: Canada Southern R'y Co. v. Jackson, 17 S. C. R. 316. The Manitoba Railway Act, R.S. M. c. 130, was incorporated in the defendant's charter, 55 Vic., c. 56, s. 32 (M. 1892), but it is contended that the latter Act does not introduce the provisions of the Railway Act as to limitation of actions: Anderson v. C. P. R., 17 O. R. 756; Prendergast v. G. T. R., 25 U. C. R. 193; McCallum v. G. T. R., 30 U. C. R. 122; May v. Ontario & Quebec R'y Co., 10 O. R. 70; Kelly v. Ottawa St. R'y Co., 3 A. R. 616. The present is not an action "by reason of the railway." J. H. Munson, Q. C., for defendants. The plaintiff's statement of claim is framed to seek relief under The Workmen's Compensation for Injuries Act; it does not permit plaintiff to claim under the Common Law. The jury negatived the claim of the plaintiff under the Common Law. The language used in the statement of claim shows that plaintiff was seeking damages under the Act: Howells v. Laudore Siemens Steel Co., L. R. 10 Q. B. 62. If the jury had answered the question put to them, and not added something else, then the plaintiff would have no standing 1897. Argument. whatever under the common law. Did the fact that the jury went out of their way to state something which was not asked from them have the effect of giving the plaintiff rights which he was not claiming under his statement of claim? The law laid down in Wilson v. Merry, L. R. 1 Sc. App. 326, is still the law: Allen v. New Gas Co., 1 Ex. D. 251; Smith v. Baker, [1891] A. C. 325; Johnson v. Lindsay, [1891] A. C. 371. The jury did not find any defect in defendants' machinery at the power house, nor anything wrong with the system of user, or that there was any system so as to bring the case under Smith v. Baker: Webster v. Foley, 21 S. C. R. 580; Barton's Hill Coal Co. v. Reid, 4 Jur. N. S. 767. By section 116 of The Manitoba Railway Act, R. S. M. c. 130, the plaintiff is altogether out of Court, more than six months having elapsed since the accident before the commencement of suit. If defendant can show that that section applies, even if plaintiff can claim under the common law, the action is barred. The wires used by the defendants were necessary for the conduct of their business. In the Railway Act, the word railway includes any appliances run in connection with a railway, such as telegraph poles, or wires, or telegraph lines. By the statute defendants are permitted to have and operate public parks. These are to be lighted, and defendants are empowered to sell light, which is derived from their electric works. This was a portion of defendants' work, and the limitation of six months in The Railway Act would accordingly apply Cairns v. Water Commissioners for Ottawa, 25 U.C.C.P. 551; Kelly v. Ottawa St. R'y Co., 3 A.R. 616; May v. Ontario and Quebec R'y Co., 10 O. R. 70; Conger v. G. T. R., 13 O. R. 160; Anderson v. C. P. R., 17 O.R. 756; 17 A. R. 480. The trend of legislation as regards the limitation of actions has been to shorten the periods. The statute was amended about nine months after the accident happened. The law required that notice of the injury should be given within twelve weeks; no notice of the injury was ever given. After the twelve weeks had expired the possibility of a right of action was gone, the notice |