1879

GREAT

RAILWAY

v.

BROWN.

other train crosses first, according to the time of arrival at the point, as regulated between the two companies. WESTERN There is therefore greater danger of loss to life and property by a collision than when a train passes a public road, and more care and circumspection are required to be used by the conductors of each train. Both trains appear to have been three or four minutes behind time, and there was therefore the more necessity for each to beware of the consequences of a collision by running into the one which happened to be ahead and then on the crossing. The conductor of the Appellants' train should therefore have approached the crossing with the greatest care and caution, instead of which he approached the semaphore, at which he was required to stop, within a few yards, at the rate of twenty-five or thirty miles an hour, trusting alone to the air-brakes, without any provision made for the use of the hand-brakes, in case of an accident to the air-brake. It was therefore such reckless management as, under the circumstances, should subject the Appellants to make good any resulting damage. The hand-brake men were not at their posts, and so much time elapsed after the breaking of the airbrake before even one of them put on the brake that the train was not stopped in time to prevent the collision, although, from the evidence, we are justified in concluding that, had the hand-brakes been instantly applied when the air-brake gave out, the train might have been stopped in time to prevent the collision.

It was contended on the argument, that as the air brake, when in good order, is superior in its action to hand brakes, and more promptly efficient, the accident occurring to it, preventing its use at a critical time, by which the train runs on unchecked, and an injury thereby occasioned, the company would not be responsible therefor. The ruling principle in such cases is of universal application; and that is, that the company

must use all the well-known and recognized appliances to prevent the occurrence of injuries, and if they trust to one only where others are as commonly used and considered necessary for safety, and damage results, the company is responsible for it. It appears from the evidence, that although air-brakes are more prompt, and even more effective in every way, they cannot be at all times solely relied on. They are useful, no doubt, in the general working of a train, but it would be wrong to trust to them alone when approaching the crossing of another train due there about the same time, at the rate of twenty-five or thirty miles an hour. It is proved that the pipes or tubes often burst; and there is no absolute security to be felt in them from even a recent test of those some time in use-the material of which they are made wears out by use, and the pressure they will bear depends upon the strength of their weakest part. In use they are, I presume, liable to injury of different kinds, which, at a given point, may weaken them, and experience of such tubes shows that no mere inspection can be relied on. They may have been recently tested, but that seems to afford little or no security, as they may become weakened by the very means used to test them. Whether the reasons I advance be sound or not we have evidence of the fact that they often give out when least expected. I think, therefore, that trusting to them alone, at a juncture such as in the present case, was wholly unjustifiable, and that when the conductor takes the responsibility of trusting to them alone, his company should have the responsibility of making good any resulting damage. There are many other facts proved that show culpable negli gence, but it is unnecessary to refer more particularly to what the evidence discloses. The declaration is for negligence, generally, and the breach of statutory provisions, as shown in this case, in consequence of which

1879

GREAT WESTERN RAILWAY

v.

BROWN.

1879

injury or damage ensues, is sufficient to entitle the ReThere is no question as to the

GREAT spondent to recover.

WESTERN
RAILWAY

v.

BROWN.

amount of damages.

I have no doubt that the Re

spondent is entitled to our judgment. I think, therefore, the appeal should be dismissed, and the judgment below affirmed with costs.

STRONG, FOURNIER and TASCHEREAU, J. J., concurred.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Insurance-Existing Insurance-Notice to agent-Application and policy.

The plaintiff, desiring to effect further insurance for two months on certain machinery, applied to defendants' Company, through one S., their agent at D., authorized to receive applications, accept premiums and issue interim receipts, valid only for thirty days. He informed S. that there were other insurances on the property, but not knowing the amount that there was in the Gore Mutual, requested him to ascertain it, and signed the application partly in blank, paid the premium and obtained an interim receipt, valid only for thirty days. S. failed to do what he promised to do, and what plaintiff had entrusted him to do, and forwarded the application to the head

PRESENT:-Ritchie, C. J., and Strong, Fournier, Henry and Taschereau, J. J.

1879

BILLINGTON

COMPANY.

office at T., making no mention of the insurance in the Gore Mutual. The Company accepted the risk, and, in accordance with their practice, where the risk extended only over a v. short period, instead of a formal policy, they issued a certificate, PROVINCIAL which stated that the plaintiff was insured subject to all the INSURANCE conditions of the Company's policies, of which he admitted cognizance, and that in the event of loss it would be replaced by a policy. The machinery was subsequently destroyed by fire, after the thirty days, but within the two months, and a policy was thereupon issued, endorsed with the ordinary conditions, one of which was that notices of all previous insurances should be given to the Company and endorsed on the policy, or otherwise acknowledged by them in writing, or the policy should be of no effect; and another was, that all notices for any purpose must be in writing. The insurance in the Gore Mutual was not endorsed on the policy.

Held: That as the application in writing did not contain a full and truthful statement of previous insurances, the verbal notice to the agent of the existing policy in the Gore Mutual, without stating the amount, was inoperative to bind the Company; the plaintiff was not entitled to have the policy reformed by the endorsement of the Gore Mutual policy thereon, and could not

recover.

APPEAL from a judgment of the Court of Appeal for Ontario (1), which reversed the judgment of the Court of Chancery for Ontario (2), pronouncing a decree in favor of the plaintiff.

Action on a policy begun in the Court of Queen's Bench, but subsequently transferred, by an order made in Chambers under the administration of Justice Act, 1873, to the Court of Chancery.

Plaintiff declared on a policy, dated the 9th February, 1875, which, he alleges, was made and accepted in reference to the conditions thereto annexed, which were to be used and resorted to to explain the rights and obligations of the parties thereto in all cases not therein otherwise specially provided for, where by defendants insured plaintiff against loss by fire, not exceeding $6,000, on property described as agricultural machinery in pro(1) 2 App. Rep. Ont. 158. (2) 24 Grant 299.

1879 cess of construction, finished and unfinished, owned by BILLINGTON the plaintiff, and contained in a two-story stone building, with a one-story frame addition, covered with INSURANCE shingles laid in mortar, occupied by the plaintiff as an

v.

PROVINCIAL

COMPANY. agricultural implement manufactory, situated on the

west side of Cross street, in the town of Dundas, in the county of Wentworth, from the sixth day of February, A. D. 1875, at twelve o'clock, noon, unto the sixth day of April, A. D. 1875, at twelve o'clock, noon; that the plaintiff was interested in the said machinery to the amount insured; that after the making of the said policy, and whilst it was in force, the said machinery was destroyed by fire, whereby plaintiff suffered damage and loss to the amount so insured, and that all conditions were fulfilled and all things happened, and all times elapsed necessary to entitle the plaintiff to maintain this action, and nothing happened or was done to prevent him from maintaining the same; yet the plaintiff had not been paid.

To this declaration defendants pleaded: ist. Policy not their deed.

2nd. That it was provided by policy and the conditions endorsed thereon, that the representations made in the application for insurance should and would contain a just, full and true value of the property insured, so far as the same were known to the said plaintiff; and that if any material fact or circumstance should not have been fairly represented, then the policy should and would cease, and be of no further effect. That the representations in the application for said insurance were contrary to said stipulation and agreement. There was misrepresentation as to value.

3rd. Alleged that it was further provided, that in case plaintiff should, at the time of effecting said insurance, have any other insurance against loss by fire on the said insured property, and not notified to the defend