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ALBERTA.]

PASSENGER-NEGLIGENCE.

[SUPREME COURT.

SWAN V. CANADIAN NORTHERN R.W. Co.

(1 Alta. L.R. 427.)

Husband and wife-Action of tort for personal injuries to wife-Joinder of parties Action by husband for loss of his wife's services-Joinder of causes of action-Common Law Procedure Act, 1852, sec. 40-English Order 18, Rule 4-Railway law-Negligence-Combination of circumstances constituting negligence-Access for passengers to cars-Length, lighting and protection of platform-Nature and measure of damages.

Per STUART, J.-Where a married woman sues in tort to recover damages for personal injuries, and not in respect of either her separate, real or personal property, it is not only proper to join the husband as a party plaintiff, but if he is not joined the defendant can insist upon the joinder, either by motion in Chambers or summarily at the trial of the action. The husband has a right of action in himself alone for the loss of the services of his wife occasioned by such injury. The wife herself has no cause of action arising from such loss, and she cannot be joined as a party plaintiff with the husband in such form of action.

The individual action of the husband for loss of services can be joined with the action of the husband and wife jointly for general damages for the injury suffered by the latter.

Semble, that the Common Law Procedure Act, 1852, sec. 40, is in force in Alberta, and quare whether English Order 18, Rule 4, is in force here or not.

Where passengers are impliedly invited by a railway company to make use of a platform as a means of access to the railway cars, it is the duty of the railway company to have the platform in a reasonably safe condition at all points, or parts where such passengers are entitled to be or stand; consequently where the plaintiff sustained injuries by attempting to board a passenger car of the defendant railway company by falling over the unprotected end of the platform, the night being dark and the platform badly lighted, without any carelessness or contributory negli; gence on her part; Held, by STUART, J., that the company were liable for negligence in not having the platform in a reasonably safe condition; and semble, that it made no difference whether the platform were well lighted or not.

Circumstances to be considered in estimating damages for personal injuries, etc., discussed.

Per Curiam.-While an act or a circumstance under ordinary conditions may not constitute negligence, under other circumstances or in other conditions it may amount to negligence, or in other words that there may be negligence in the combination.

Held, therefore, that the combination of circumstances in this case, namely, a long night train drawn up at a snort platform inadequately lighted, so that passengers attempting to board the train were not free from danger of accident, constituted actionable negligence on the part of the railway company.

Judgment of STUART, J., affirmed.

THIS action, tried before STUART, J., at Edmonton, on June 19th, 1908, without a jury, was brought by the plaintiff, Alice Swan, and her husband, Charles Swan, claiming (1) on behalf of the husband and wife jointly, damages (including monies paid for medical attendance, hospital fees, etc.), for personal injuries to the wife, alleged to have been caused by the negligence of the defendant: (2) by the husband alone claiming damages for loss of his wife's services as the result of such injuries.

The facts of the case, as found by the learned trial Judge, are as follows:

The two plaintiffs, with their daughter, had, prior to the 28th October, 1907, been living in the neighbourhood of Lloydminster, while a son was residing in that town not far from the Canadian Northern Railway Station. The plaintiffs had decided to move with their daughter to Vancouver to take up their residence there, and on the date mentioned had come into Lloydminster with the intention of leaving that evening on a train of the defendant company for Edmonton. They stopped at the son's house, and about 9 o'clock in the evening the plaintiff Charles Swan had gone to the ticket office at the defendant's station, and had bought three first-class tickets to Edmonton. He had previously arranged for the shipment of his household goods, and after purchasing the tickets had checked the baggage belonging to the party, except such as they would require to take with them on the train. He had then returned to his son's house to await the arrival of the west-bound train which was due about eleven o'clock. Shortly before that hour the two plaintiffs, the daughter and the son, went to the station, the three former to board the train and the son to assist them. The father and son went ahead carrying some hand baggage, and the mother and daughter walked behind. They reached the platform of the station, which lay on the south side of the railway track, at the west end, and then found that the train had already reached the station. There was a considerable number of people at the station, some intending travellers, and some, no doubt, curious spectators. The party

walked eastward along the station platform, the father and son still in front and the mother and daughter behind. The train consisted of engine and tender, a mail and express car, a baggage car, next a colonist, that is a second-class car, then another colonist car, then a first-class car or day coach, and lastly a Pullman car or sleeper. The train had been so placed that only the first colonist or second-class car stood opposite the platform. The rear steps of this car were, as the evidence clearly shewed, just opposite the eastern end of the station platform. At the eastern end of this platform there were two steps leading down to the ground, so that a person descending regularly would reach the ground with the third downward step. Beyond these steps to the eastward there was nothing but the ground beside the rails, except that a sidewalk some six feet south of the rails ran eastward to a street. The steps, therefore, leading to the first-class car were several feet from the ground, and there was no convenient means of entering that car except by first entering the first colonist car from the station platform and walking back through the train to the first-class car. The night was very dark, and the only lights at the station were an oil lamp at the side of the station building some eighty-seven feet west of the eastern end of the platform, and possibly another further west at the western end of the station building. The plaintiffs, for some reason which they did not clearly explain, instead of entering the train by the forward steps of the first colonist car, went on eastward through the crowd of people to the steps at the rear end of the car. The conductor of the train had, when the train stopped, come forward through the colonist cars instructing the people who desired to alight to come with him to the front of the first colonist car, and he then descended to the platform with a lantern in his hand and assisted the passengers to alight. The reasonable explanation of the action of the plaintiff in going further eastward is that they saw these people alighting and, as travellers often do, thought they could get into the train sooner by going to another entrance instead of waiting for all

the passengers leaving by the front steps to alight. At all events, the plaintiffs, when they reached the rear steps, found passengers leaving the train by that exit and found others also there entering the car. The father and son apparently succeeded in getting somewhat nearer the steps, intending to go in with hand baggage first. The plaintiff Alice Swan and her daughter stood somewhat further back from the steps of the car. It did not clearly appear whether or not the plaintiff Alice Swan was aware that she was standing in the neighbourhood of the eastern steps of the platform. She had been at the station two years before, but had not been there in the meantime, and she clearly had no accurate knowledge of the size of the platform or of the location of the steps. Whether or not she knew these steps were somewhat near her or not, she clearly was not aware exactly how close to them she was standing. A man in the crowd asked her to let him pass as his little girl was ahead. She stepped aside to comply with his request and, in doing so, stepped beyond the edge and fell to the ground and was injured.

The nature and effect of the pleadings, and the questions of law as to joinder of parties and joinder of causes of action, discussed at the trial, with the arguments, are stated in the judgment of the learned trial Judge.

June 19, 1908.

C. F. Newell (H. C. Lisle with him), for the plaintiffs.
O. M. Biggar, for the defendants.

June 29, 1908. STUART, J.-The defendant company pleads, among other defences, that the two plaintiffs are improperly joined as parties because their causes of action are separate and distinct and cannot be joined in one action. After the evidence was taken, counsel for the defendant company urged this latter ground of defence, and referred to Smurthwaite v. Hannay (1894), 63 L.J.Q.B. 737, (1894), A.C. 424, 6 R. 299, 71 L.T. 157, 43 W.R. 113, 7 Asp. M.C. 485-H.L. (E.), and other cases. It is

quite apparent, however, that the matter depends upon considerations different altogether from those dealt with in the cases cited. We have no statute in force in this province which gives a married woman the right to sue alone, as if she were a feme sole, in respect of a tort committed against her. There is no Territorial Ordinance which touches the subject at all. Chapter 47 of the Revised Ordinances, 1898, refers only to rights and liabilities in respect of personal property." Sections 36 to 41 of the North-West Territories Act, which by virtue of the Alberta Act, are no doubt still in force in Alberta, notwithstanding the repeal of that Act by the Dominion Parliament at the time of the consolidation of the Dominion Statutes, do not in any way refer to the case of actions by married women in respect of torts committed against them. Our law on the point, therefore, still stands where the English law stood on 15th July, 1870, at which date no statute of any kind had yet been passed dealing with the right of a married woman to sue in her own name.

In the case of Weldon v. Winslow (1884), 53 L.J.Q.B. 528, 13 Q.B.D. 784, 51 L.T. 643, 33 W.R. 219 (C.A.), Brett, M.R., explained the old law as follows: "She is suing for personal injury to herself. For such a cause of action no action could ever have been brought by the husband alone without joining his wife as a plaintiff. What is done to her is the cause of action, and under the old practice she might have sued in her own name, without joining her husband, and could have recovered if the defendant did not plead her coverture in abatement, for he could not plead it in bar of the action. The injury to the wife was the meritorious cause of action, and if she had died before the commencement of the action the husband would not have been entitled to sue. If damages should be given they would belong, in the first place, to the wife alone, and if they should not be reduced into possession by the husband and he should die, the damages would be hers, and would not go to his executors. It seems to me that, according to the law of England, the action was always the action of the wife, subject to the right on the part of the defendant of insisting on having the husband joined."

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