1882.

HALL

V.

MCFADDEN.

is not answerable for that. If the train was so long that the passenger car could not remain at the platform while the conductor was at his dinner, he is not liable for that, for the train was under and subject to the station master. When the conductor had his orders from the station master to start he must obey, subject only to passengers entering the cars. The regulation requires the conductor to be at the front end of the first passenger car. He was unable to make a signal or call to the driver from the side of the car next the station from the curve in the road, and had from necessity to pass through the cars to the opposite side to give the signal. This would not be a violation of the regulation 124, which does not confine the starting of the train or giving the signal from any particular side of the train. This I am of opinion was not a wrongful act so as to make it a misfeasance. The call of "all aboard" was, I should judge, “ all aboard" to mean the train was ready to start, an invitation to the driver and other employees of the railroad, and that passengers should take their seats; there is nothing in the regulation to intimate such a call necessary, or that passengers should wait for the call beyond the time the train was to start. The train arriving later than the time fixed for arrival, passengers should have been ready to enter the cars on arrival, and when the passengers on board came out of the cars. What length of time the cars should remain at the station would be determined by how many were ready to go on board. The cars, the jury find, were brought to the platform on coming from St. John to Sussex, and there the duty of the conductor ceased; if the car was removed from the platform afterwards can he be responsible for that? Certainly not. The train moved when he called out "all aboard," or, as Mrs. Freeze states, it was moving when the conductor came out of the station and called out "all aboard." If the train was moving when the defendant came out of the station house it was no act of his which caused it to move, and on that ground no fault could be imputed to him. The train as he left it, he had a reasonable ground to believe he would find it, and start it according to directions. He saw no person attempting to get into the cars and therefore gave the signal to the driver from the only place it was possible to do so from the head of the passenger car.

1882.

HALL

v.

The defendant having done no more than carrying out the duty required by the regulation, I am of opinion he cannot be made liable for any damage a passenger receives in getting on MCFADDEN. or off cars. There must be some misfeasance on his part, and no responsibility attaches to the conductor beyond what is contained in the regulation, and unless he violates those he is not liable in this action. If the length of the train was such that the passenger car which would be in the rear could not be brought in front of the platform to enable passengers to get on and off, the conductor has nothing to do with such an omission on the part of the government to provide such accommodation. for the passengers.

The question as to the mis-direction of the learned Chief Justice, the charge would properly be correct if it had been an action against the owner or proprietors of the road. All actions in the Books are against companies, and in this I am of opinion the learned judge laid down the rules applicable to their case. Take the third paragraph in the printed case. "If the first class car did come up to the platform, did it remain there a reasonable time to enable passengers to get on board from the platform?" The defendant brought the end of the passenger car to the platform, from which he and the passengers landed at the platform. The defendant's duty then ended. Whether it remained there, or how long, was no part of the defendant's duty to ascertain. It ceased, and the station master had control. The train being of such length that the passenger car could not be brought up to the platform for passengers-there was no liability attaching to the conductor or the station master. This was a duty of having proper stations belonging to the government, and I am of opinion that part of the charge may have led the jury to believe it was the duty of the defendant to have this done, where in fact it appeared the train was of such a length that he could not do it, and if the position of the car was altered after the defendant left it, he was not liable for that.

I am of opinion the object of the rule requiring the passengers to get their tickets five minutes before the train is to start evidently conveys the impression that no delay is to take place. The call "all aboard" is rather to intimate the passen

gers are on board, and the driver receives his signal if he can from where the conductor to give it stands.

As to the other questions as to the plaintiff being contributory to the injury she received, the plaintiff admits the cars were in motion when she attempted to get on board; the box which she had in her right hand would prevent her using it, and whether two hands to assist a person in entering the cars would not be better than one. I may not be able to arrive at the same conclusion which the jury have done.

I express no opinion on these points, but fully entertaining the opinion that the defendant is not liable in this action, I confine myself to that--but as no leave was granted to enter a non-suit, I am of opinion the rule should be made absolute for a new trial.

ALLEN, C. J. I agree with the majority of the Court as to the plaintiff's general right to maintain the action. The facts of the case, and the authorities bearing on the question have been so fully considered, that it is unnecessary for me to refer to them.

As to the question of contributory negligence, if I had to determine it, it is quite possible that I should not have come to the same conclusion as the jury have done; but it was a matter for them to decide, and they have negatived it.

The damages are probably larger than I would have been disposed to give, particularly in the absence of any evidence but that of the plaintiff herself, that she has been permanently injured. It would have been more satisfactory if there had been evidence of some competent professional man on this point; still, there is the evidence of the plaintiff herself, given four years after the injury, that she is deaf in one ear, and never was so before the accident. If this is the case, and her deafness was caused by the accident, and will be permanent, the damages are not too large.

Very probably the jury were influenced by the idea that the Government would pay the damages. The evidence of that, if objected to, ought not to have been received, and I pointed out to the jury that they ought not to be influenced by any such consideration. There is no standard of damages in actions of this kind, as there is, to some extent, in actions on

1882.

HALL

บ.

contract. Actions of tort are governed by looser principles in the matter of damages than actions of contract. In Mayne on Damages 23, it is said that in actions for injuries to the person, MCFADDEN. “it is difficult, if not quite impossible, to fix any limit, and the verdict is generally a resultant of the opposing forces of the counsel on either side, tempered by such moderating remarks as the judge may think the occasion requires." I told the jury that if the plaintiff had been permanently injured she was entitled to compensatory damages, according to her station in life, greater of course than if her injuries were only temporary. They must not be influenced in the amount of damages by the fact that the railway was a government work, and perhaps the government might pay any damages recovered; the government was not bound to do so. The damages must be estimated according to the plaintiff's injury, and as if the defendant alone was responsible. Mr. Mayne further adds that where it has been pointed out to the jury what grounds of complaint may be allowed for in damages, the amount is entirely in their disposition; and " a new trial will only be granted when the verdict is so large as to satisfy the court that it was perverse, and the result of gross error, and to prove that the jury have acted under the influence of undue motives or mis-conception." The case of Morton v. Bartlett has been referred to on this point; no doubt the cases are distinguishable, as has been pointed out, for there the act of the defendant was deliberate and intentional; here it was not so, still I think the damages are not so excessive as to justify us ordering a new trial.

New trial refused.

INDEX.

ACQUITTAL-In an action for negligence, | AMENDMENT.-Continued.

when there is no evidence against one of the
defendants he is entitled to have a verdict
entered for him at end of plaintiff's case, .211

-In obtaining writ of Habeas Corpus- Equity on a question of fact will not be re-
Surplusage,