FATAL ACCIDENT ACT-EXCESSIVE DAMAGES:

ONTARIO.]

[COURT OF APPEAL.

RONSON V. CANADIAN PACIFIC R.W. Co.

(18 0.L.R. 337.)

Fatal Accidents Act-Excessive damages-Death of wife and mother-R.S.O. 1897, ch. 166.

In an action under the Fatal Accidents Act, R.S.O. 1897, ch. 166, to recover damages for the death of a married woman, 62 years of age, the jury awarded $3,325, apportioning $325 to the executors of her husband who survived her, $800 to a daughter 36 years of age, $700 to a son 27 years of age, and $1,500 to a son 21 years of age.

Held, that damages recoverable being entirely pecuniary, the above (except as to the executors), considering the ages and circumstances of the children, and the age and financial ability of the mother, were grossly excessive, and the case must go to a new assessment.

THIS was an appeal by the defendants from the judgment at the trial of this action at St. Thomas on April 22nd, 1908, before His Honour Judge Colter, Judge of the county court of the county of Elgin, sitting for and at the request of Magee, J., assigned to take the assizes for the county of Elgin.

The action was one of negligence, claiming damages for injuries sustained by Eleanor Ronson, deceased, wife of James Ronson, since deceased, and the defendants admitted liabilities for any damages which should be legally proved against them. By the judgment appealed from the defendants were ordered to pay to the plaintiffs the sum of $3,325, apportioned by the jury as follows: To the executors of James Ronson, $325; to Sarah Moffatt, aged 36, eldest daughter of deceased, $800; to Charles L. Ronson, aged 27, eldest son of deceased, $700; to George Ronson, aged 21, also a son of deceased, $1,500.

The appeal was argued on February 3rd, 1909, before Moss, C.J.O., and OSLER, GARROW, and MACLAREN, JJ.A.

G. T. Blackstock, K.C., and Angus MacMurchy, K.C., for the defendants, appellants, contended that the damages granted were altogether excessive in view of the circumstances of the case, which are sufficiently set out in the judgment below: Rowley v. London and North-Western R.W. Co. (1873), L.R. 8 Exch., p. 221; that the damages had been assessed according to the mortality tables,

24-IX. C.RY.C.

which was not proper: Central Vermont R.W. Co. v. Franchere (1904), 35 S.C.R. 68; Vicksburg and Meridian R.R. Co. v. Putman (1886), 118 U.S. 545, 556; that whenever a wrong measure of damages is given to a jury, a new trial should be granted: Johnston v. Great Western R.W. Co., [1904] 2 K.B. 250.

C. A. Masten, K.C., for the respondents, as to consortii damnum referred to the St. Lawrence and Ottawa R.W. Co. v. Lett (1885), 11 S.C.R. 422; and contended that the executors of James Ronson had a right to recover; that the proper rule was laid down by Brett, L.J., in Phillips v. London and South-Western R.W. Co. (1879), 5 C.P.D. 280, at pp. 289-290; Johnston v. Great Western R.W. Co., supra. He also referred to Hetherington v. The North-Eastern R.W. Co. (1882), L.R. 9 Q.B. 160; Renwick v. Galt, Preston and Hespeler Street R.W. Co. (1901), 6 O.W.R. 413; Stephens v. Toronto R.W. Co. (1905), 6 O.W.R. 657.

Angus MacMurchy, in reply.

April 5, 1909. The judgment of the Court was delivered by GARROW, J.A.:-Appeal by the defendants from the judgment at the trial before the Judge of the county court of the county of Elgin, sitting for Magee, J., and a jury, in favour of the plaintiffs.

The action was brought to recover damages for the death of Eleanor Ronson through the negligent operation of an engine and train by the defendants upon their railway.

Eleanor Ronson was the wife of James Ronson, and the plaintiffs, Charles L. Ronson, George E. Ronson and Sarah E. Moffatt are their children. The plaintiff Edgar Sandham is the executor of the last will of Eleanor Ronson, and the plaintiffs Charles L. Ronson and George E. Ronson are the executors of the last will of their father, who died after the accident and before action.

The accident occurred on September 3rd, 1907, but Eleanor Ronson survived until November 12th, 1907. The defendants at the trial admitted negligence. The jury assessed the damages at the following sums: to the executors of James Ronson, $325; to Sarah Moffatt, the daughter, $800; to Charles L. Ronson, a son, $700; and to George Ronson, a son, $1,500.

James Ronson was a farmer, living with Eleanor Ronson his wife, upon lands apparently owned by him in the township of Middleton, in the county of Norfolk.

Eleanor Ronson, according to the evidence, was a capable managing sort of woman, but there is no evidence that she had any considerable property or means of her own. What she managed, and no doubt managed very well, was, as far as appears, wholly the property of her husband. She was evidently very fond of her children and of helping them, but always apparently out of her husband's property. In addition she was always ready with competent advice and with active help in time of sickness or other

stress.

The eldest child was Sarah. She was 36 years of age, and had been married and away from her parents' home for twelve years. The next was Charles. His age was 27 years. He, too, had been married for some years, and was doing for himself on land which his father had sold to him at a reduced price, helping him also with his live stock. The youngest was George, 21 years, who resided at home, and who, after the accident, and before his mother's death, also married and went to live on land supplied by his father.

The damages recoverable under R.S.O. 1897, ch. 166, are entirely pecuniary in their nature. The plaintiffs must shew by reasonable evidence that but for the negligent act of the defendant they were likely to have gained the amount of the damages which they seek to compel the defendants to pay. And they must shew not merely willingness on the part of the deceased, but ability—that is, the means, to do that which was not done because of the death. children were all beyond the age when they required a mother's care in the ordinary sense, or, with spouses of their own, were very likely to be guided by a mother's advice.

These

The mother's own property was of so small an amount as to be quite insignificant as a source of pecuniary assistance to her children, and the personal services of a woman 62 years of age, as nurse or as a helper in the field, could in any event not have been reasonably expected to continue very long. There is not a particle of evidence (if it is of any consequence) that in helping the children out of her

husband's property she was not acting simply as his agent, and with his entire concurrence. And in the absence of evidence, that is, I think, the proper presumption. So that on every ground and however viewed, the large damages assessed by the jury are not based upon any proper view of the facts, and are at least grossly excessive.

I say "at least," because I have had, and still have, considerable doubt, in the case of some, if not of all the children, whether there was any reasonable evidence for the jury of pecuniary loss in any proper sense. But upon the whole I think it will be safer to permit the case to go to a new assessment, leaving this question entirely open.

The judgment in favour of the executors of James Ronson was not, I think, successfully or even seriously attacked, and may stand, and the appeal as to it be dismissed with costs.

The appeal should otherwise be allowed, and with costs, for the plaintiffs fail in that which was seriously in contention.

The costs of the last trial, except as to the plaintiffs the executors, should, under the circumstances, be reserved to be dealt with by the trial Judge.

The cases printed in these series of Canadian Railway Cases from British Columbia, Alberta and Saskatchewan are reprinted with the permission of

the Law Societies of these Provinces.

ANIMALS AT LARGE-DAMAGE TO CROPS.

MANITOBA.]

[COURT OF APPEAL.

HUNT V. GRAND TRUNK PACIFIC RAILWAY CO.

(18 Man. L.R. 603.)

BEFORE HOWELL, C.J.A., RICHARDS, PERDUE AND PHIPPEN, JJ.A.

Railway Obligation to fence right of way-Railway Act, R.S.C., 1906, ch. 37, secs. 254, 427-Injury to crops caused by cattle straying from railway line not fenced.

The duty of a railway company to provide, under section 254 of the Railway Act, R.S.C., 1906, ch. 37, fences and cattle guards suitable and sufficient to prevent cattle and other animals from getting on the railway, is prescribed only to protect the adjoining land owners from loss caused by their animals being killed or injured on the track; and, notwithstanding the general language of section 427 of the Act which gives a right of action to anyone who suffers damages caused by the breach of any duty prescribed by the Act, an adjoining owner whose crops are injured by cattle straying on to his land from the railway track, in consequence of the absence of fences, and cattle guards, has no right of action against the railway company in respect of such injury.

James v. G.T.R. (1901), 31 S.C.R. 420; Gorris v. Scott (1874), L.R. 9 Ex. 125, and McKellar v. C.P.R. (1904), 14 M.R. 614, followed.

Winterburn v. Edmonton Ry. Co. (1908), 8 W.L.R. 815, not followed.
RICHARDS, J., dissented.

ARGUED: 3rd March, 1909.

County Court appeal.

THIS action involved the consideration of the Railway Act, R.S.C. 1906, ch. 37.

Cattle, not belonging to the plaintiff, got upon the railway track at a highway crossing because of the absence of cattle. guards, and thence wandered on the plaintiff's field of growing grain because of the want of a fence between the plaintiff's land and the railway track, at a point where the defendants were required to fence by section 254 of the Act, and destroyed his crops to the extent of $417.

Judge Ryan, who tried the case, gave a verdict for the defendants on the legal points raised and plaintiff appealed.

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