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tribute out of their earnings, and in two of them of substantial contributions. Facts were thus supplied from which a jury might properly infer a reasonable expectation of pecuniary advantage from the continuance of the life of the deceased.

The remarks of Pollock, C.B., in Franklin v. South Eastern R.W. Co. (supra), at p. 214, illustrate this view. After pointing out that damages are not to be given as a solatium nor merely in reference to the loss of a legal right, he proceeded: "If then the damages are not to be calculated on either of these principles, nothing remains except that they should be calculated in reference to a reasonable expectation of pecuniary benefit, as of right or otherwise, from the continuance of the life. Whether the plaintiff had any such reasonable expectation of benefit from the continuance of his son's life, and if so, to what extent, were the questions left in this case to the jury. The proper question then was left, if there was any evidence in support of the affirmative of it." Having thus defined the nature of the action and the proper question for the jury, and after summarising the evidence, he went on to say what I have already noted: "We do not say that it was necessary that actual benefit should have been derived, a reasonable expectation is enough, and such reasonable expectation might well exist, though from the father not being in need, his son had never done anything for him. On the other hand a jury certainly ought not to make a guess in the matter, but ought to be satisfied that there has been a loss of sensible and appreciable pecuniary benefit, which might have been reasonably expected from the continuance of the life."

So in Hetherington v. North Eastern R.W. Co., 9 Q.B.D. 160, an action by a father for his own benefit for the death of his son aged twenty-nine years, the evidence was that the father was fifty-nine years of age, nearly blind, and almost incapable of working by reason of injuries to his left leg and hands, that the deceased son used to contribute to his support, and five or six years before his death, the father being out of work, had assisted him pecuniarily out of his earnings. The question was whether

there was sufficient evidence of pecuniary injury occasioned to the father by his son's death to sustain the action. It was held by a Divisional Court, overruling the opinion of a County Court Judge, that there was some evidence for the consideration of the jury, and that it was for them to say whether on that evidence there was a reasonable expectation of pecuniary advantage to the father from his son's life, and what, if so, the measure of such expectation was.

In England these principles have been firmly adhered to, and it is safe to say that one may search in vain for a case in which, in the absence of some evidence of the character above indicated, a jury has been instructed that they might find a verdict in favour of the plaintiff.

While, as the instances above referred to shew, it is not absolutely essential to prove the actual receipt of pecuniary assistance or benefit during the lifetime of the deceased, there must be evidence of such a tangible and substantial character as to satisfy a jury that, in the words of Pollock, C.B., "there has been a loss of sensible and appreciable pecuniary benefit, which might have been reasonably expected from a continuance of the life."

Capacity, ability, and willingness to assist may be inferred from the facts shewn, but it seems clear that there must be shewn to exist such a condition of things as will fairly and reasonably lead the mind to the conclusion that a loss has actually been sustained. Otherwise the jury are put in the region of conjecture, they are left to guess, and so they are more likely to punish the wrong-doer than to render the compensation the statute provides for those on whose behalf the action may be brought.

In the instances of actions arising out of the deaths of young persons there has always been an attempt on the part of the plaintiff to shew deprivation of a present actual pecuniary benefit, very slight in some cases, but still tangible, such as the performance of services in the household.

In the comparatively recent case of Bedwell v. Golding (1902), 18 Times L.R. 436, the action was by a father to recover

damages for the death of his daughter, eleven years old. Evidence was given that she lived with her father and performed certain household services which enabled him apparently to dispense with a servant. The trial Judge directed the jury on this branch of the case that the plaintiff was only entitled to recover as damages for the loss of his daughter's services the excess value to him of those services over the estimated cost of her keep and general maintenance. The jury assessed the damages on this head at £30.

In Clark v. London General Omnibus Co., reported in the first instance in (1905), 21 Times L.R. 505, and in appeal (1906), 22 Times L.R. 691, and [1906] 2 K.B. 648, the action was by a father to recover for the death of his daughter, twelve years old. On the question of damages the evidence was very similar to that in Bedwell v. Golding (supra), but there was the additional fact that the girl's schooling was costing nothing. The trial Judge ruled that there was evidence on which the jury might find that there was an excess in value of the services over the cost of maintenance. The jury found, however, that the plaintiff was not entitled to any damages for the loss of his daughter's services. The case went to appeal on other points, and eventually the action was dismissed, but no objection appears to have been made to the way in which the question of damages was put to the jury, nor to their finding thereon.

For a very full discussion of this case see Jackson v. Watson, [1909] 2 K.B. 193.

In each of these cases the matter appears to have been dealt with in accordance with the view expressed by Baron Bramwell in Duckworth v. Johnson (supra), that "if the plaintiff is compelled to give evidence of the value of the child's services and the cost of maintaining him, it might keep the matter straight and prevent injustice being done."

In our own Courts there has been an effort in the case of the death of young persons to prove some present services or assistance, with the view, no doubt, of enabling the jury or other tri

bunal to come to a conclusion whether or not there was a deprivation of a pecuniary benefit the continuance of which might reasonably be expected. That was done in the well-known case of Ricketts v. Village of Markdale, 31 O.R. 610.

The present seems to be the first case in our Courts in which it can be said that there was really no evidence demonstrating a capacity and a willingness on the part of the child to assist the parents, as shewn by his proved acts.

Here there is really nothing on which a jury is to come to a conclusion but the fact of the relationship, the age, the sex, the general health, the intelligence-promising, no doubt, but yet that of an infant-and the death.

The case is really that suggested by Barry, L.J., in Wolfe v. Great Northern R.W. Co., 26 L.R. Ir. 548, at p. 570, of a father coming before the Court saying, "My child has been killed; and if it had lived I should have obtained great pecuniary benefit. from its services."

I cannot but think that in a case like the present the jury can only arrive at an award of damages by a process of speculation and by mere guess-work not founded upon premises upon which they can reasonably proceed to estimate compensation in accordance with the principles on which it is to be awarded under the statute.

Support can be found for it in the holdings of the Courts in the United States, but so also can decisions to the contrary.

There are variances from Lord Campbell's Act in the legis lation in many of the different States of the Union, and the decisions necessarily appear to be in conflict with the English authorities and with one another.

Indeed some of them would, I venture to think, be a rather startling surprise to the framer of the original Act and to those Judges to whom the object and intent of the legislation was a matter of personal knowledge and who placed a construction on its terms when the matter was new.

I am unable, consistently with the view I hold, to say that the verdict should stand. I think that the appeal should be

allowed, but of course upon the terms upon which the defendants were granted leave to appeal.

MACLAREN, J.A., agreed with Moss, C.J.O.

Appeal dismissed.

Leave to appeal to the Judicial Committee (P.C.) upon the question of the plaintiff's right to damages was refused 16th November, 1909.

JURISDICTION-ORDER-REVIEW, RESCIND OR VARY.

CANADA.]

[BOARD OF RAILWAY COMMISSIONERS.

CITY OF VICTORIA V. ESQUIMALT & NANAIMO RY. CO.

(Application No. 5663.)

Jurisdiction-Public Highway-Crossing-Fenced-Not Legally ClosedStile Substituted-Acquiescence by City and Public-Order of the Board-Review, Rescind or Vary-Reasonable Convenience of the Public-Conditions as to Safety-Highway to be Kept Open-Railway to Construct--City to Maintain and Make Safe.

On an application to review, rescind or vary a former order of the Board approving the closing of a public highway across the right of way of a railway company and the substitution of a stile therefor.

Held, 1. That conditions have greatly changed since the date of the former order, the reasonable convenience of the public requires the highway to be open, which had never been legally closed.

Held, 2. That the application for the re-opening of the highway should be granted on condition that the railway company construct crossing, the city maintain the same and make such changes in the locality as will render the crossing as safe as may be under the circumstances.

The application was heard at Victoria on the 27th of February, 1909.

W. J. Taylor, for the City of Victoria.

D. S. Tait, for Victoria West.

J. E. McMullen, for the Esquimalt & Nanaimo Ry. Co.

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