1882. HALL V. MCFADDEN. towards Moncton, for negligence in starting the train from Sussex towards Moncton, the plaintiff being a passenger from Sussex. The railway belongs to the Dominion Government. The regulations to guide the station masters and conductors are laid down in Statutes of Canada, 1877, appendix cii. The train of which the defendant was conductor was a long one, consisting of seventeen freight cars and two passenger carsfirst and second. The train arrived ten minutes late. The plaintiff had been waiting on the platform in company with another person, Mrs. Freeze. A passenger who came up in the train from Saint John to Sussex in the first class car got out on the platform, went to McLean's, got his dinner and returned to the car. The conductor came out of McLean's. Not being able to give the signal at Sussex station from the platform, he crossed the train to the opposite side to give the signal to the driver to start. Saw no person making for the train to get on board. A train of the length of 19 cars would not start very quickly on account of the couplings. "All on board" was called out by the conductor as he passed through the train to give the signal. The train began to move after the signal was given. Mrs. Freeze was ahead of the plaintiff going into the car when she heard "all aboard" called by the defendant. She stepped on to the car, and plaintiff following her to get on the car, her foot slipped, and, having a parcel in her right hand, caught the up and down railing with her left hand; she fell between the platform and car, and sustained the injury for which this action is brought to recover compensation. The defendant contends that he is not liable in this action, having followed out the directions of the regulations prescribed by the Government, that having brought the train of which he had charge to the railway station as near as he could get, his duty there ended. The train being a very long one, the platform not being of sufficient length, to bring the passenger car up to the platform was impracticable, and, if only the forward part of passenger car could come to platform, was no fault of his. It belongs to the Government to have the platform long enough to embrace the pessenger car. The platform was not provided by the defendant; he was merely a servant of the Government. His duty ended when the train reached the station, the head of the train extending to the highway. Whether the rear of train came to platform or not was not a matter for which he could be made liable, the defect was in the length of the station, which he could not control. The question thenis, can the defendant be made liable unless he violates the regulations made for his guidance, and thus be guilty of a misfeasance which produced the injury complained of. The defendant's duty ended when the train arrived at the station, and did not commence again until he had orders or a signal from the station master, when he must give the signal to the engine-driver to go ahead. At the Sussex station, from the length of this train, the conductor could not give the signal to the driver. The head of this train curves from the station, and the conductor had to pass through the second class, or baggage car, to the opposite side, to give the signal. He saw no passengers in the act of getting on board, and after passing through the car, and where he could give the signal to the driver, he gave it. The 124th regulation says: "They (the conductors) must not give the signal to start while passengers are getting on board, and should, when making it, stand near the front end of the first passenger car, and then pass to the platform of the last car." There is nothing in the regulation stating on which side of the car the conductor must stand. It is quite evident to me he must stand on that side of the car from which he could make a signal to the driver. No other construction. can, I think, be given to this regulation, and I am of opinion that his doing so was not a wrongful act by him and would not be a misfeasance. Morton v. Bartlett' does not apply to this case; there a trespass was committed on the person of the plaintiff by the defendant. In the present case no such act was done by the defendant, but, seeing no person to get on board the cars from the platform, he passed into the cars to enable him to give the signal to the driver, and must have been at the head of the car through which he passed, in com- · pliance with the regulation. The defendant had no power to change the position of the cars or train when he had his orders. from the station master to start. It is no part of the conductor's duty to call out "all on board" by the regulations and 1882. HALL v. MCFADDEN. 1882. HALL V. MCFADDEN. orders for his guidance; and therefore the meaning to attach I am unable to discover any negligence on the part of the defendant to amount to a misfeasance or any violation of his duty. But it is urged the question of negligence must be left to the jury. It may be so in actions against the railway com. pany, but that is a disputed point. It can hardly be said that there was evidence of any negligence on the part of the defendant. He brought the train to the station. He left it there. He was absent 15 or 20 minutes. When he received his orders from the station master he started the train. There was time train coming, He saw none. for all passengers who were waiting for the In Tuff v. Warman,' the proper question for the jury is there laid down, viz.: whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary and common care and caution, that but for such negligence or want of ordinary care and caution on his part the misfortune would not have happened. In Fordham v. The London, Brighton and South Coast Ry. 15 C. B., N. S. 585. 1882. HALL V. Co.1 "In an action against a railway company for an injury occasioned by the negligence of the guard of a train, the evidence was that the plaintiff in getting into a railway carriage MCFADDEN. put his hand on the hinged side of the door of the carriage which was standing open, and, before he had got quite in and taken his seat, the guard came and without any warning slammed the door upon the plaintiff's hand and so jammed it between the door and the door post. It appeared from the plaintiff's evidence at the trial that there was no handle to get into the carriage by, or at least none that could be seen, it being dark at the time. Held, affirming the decision of [the court below that there was evidence of negligence on the part of the defendants, and there was not such clear evidence of contributing negligence on the part of the plaintiff, that the judge at the trial ought to have withdrawn the case from the jury." This case shows two acts by the defendants: that of no handles to assist passengers, and the guard slamming the door without warning. The case of Richardson v. The Metropolitan Ry. Co., is similar to the last case cited, injury to the hand, but the guard gave due warning before shutting the door. The Court held the accident was attributable solely to the plaintiff, and there was no evidence of negligence by the defendants, and that there was evidence of negligence by the plaintiff. In Siner and wife v. The Great Western Ry. Co., the plaintiffs were passengers on an excursion train of the defendants. On arriving at the station for which they were bound, the train being longer than the platform, some of the carriages, the one on which the plaintiffs were, stopped at a point beyond the platform. It was then daylight. The plaintiffs were neither told to get out nor remain in the carriage. There was no servant on hand. Other passengers got out, and after waiting a few minutes the male plaintiff got out. His wife, taking both his hands, jumped as carefully as she could from the iron step to the ground, and, in so doing, sustained the injury for which this action was brought. No offer was made to back the train so as to bring the carriage to the platform, but no request was 138 L. J., C. P. 324. 237 L. J., C. P. 300. 338 L. J., Ex. 67. 1882. HALL V. MCFADDEN. made to the defendants' servants to do so. It was not shewn that the length of the platform at the station was inadequate to the ordinary traffic of the place. Held by Byles, Mellor, Montague Smith and Hannen, JJ.,-Keating, J., dissentiente,that the accident arose from the acts of the plaintiff, and there was no evidence on the defendants' part to leave to the jury. In Cockle v. The South Eastern Ry. Co.,1 there the engine driver drew up the train short of the proper place, so that the last carriage, in which was the plaintiff, was opposite to the receding portion of the platform. There was no light at this end of the platform, which was lighted only at the other end. The train having stopped for a few seconds, but the name of the station was not called out, the plaintiff opened the door, stepped out, and fell into the chasm between the carriage and the platform and was injured. Among those who came to help the plaintiff was an inspector, who said it was the driver's fault in drawing up short, and the train eventually proceeded from the spot without drawing up further. Held by Bovill, C. J., and Brett, J., that there was evidence for the jury of an invitation to alight and negligence of the defendants, without contributory negligence of the plaintiff, while Keating, J., and Montague Smith, J., held a contrary opinion. In Gee v. The Metropolitan Railway, there the plaintiff, in company with his brother, was travelling on an underground railway. The question which the jury had to consider from the evidence was whether the defendants had not, when the train left the station, failed to see that the door was properly fastened in the ordinary manner in which such doors are fastened. Kelly, C. B., says: "I think it was their duty to see that the door was fastened before it left the station, and the fact that it flew open was evidence that it was not properly fastened. The degree of pressure applied by the plaintiff was not sufficient to account for its flying open." Grove, J., says: We may assume that it was the ordinary case of a railway door which shuts from the outside and can only be conveniently shut from the outside. Such a door is jammed to with such force to enable the latch to fill and hold the door firm, and it would be extremely inconvenient if it had to be shut by the |