contract was made in Canada, yet if the goods were to be measured in the United States according to their measures the Act would not apply: Rosseter v. Cahlmann (1853), 8 Ex. 361; but that would be fatal to this action. Or it may be that, if expressed to be a bushel of 34 pounds, the reference to the pounds would suffice: Jones v. Giles (1854), 10 Ex. 119, and S.C. in error, 24 L.J.Ex. 259; Hughes v. Humphreys (1854), 3 E. & B. 958. But here there was no such definition in the contract. We may assume, as the parties here have assumed, that the American pound is the same as the Canadian. No evidence is given of the capacity of the American bushel, which I believe is in fact only about one-thirtieth, and not one-seventeenth, less than the capacity of the Canadian (vide Standard Dictionary and Encyc. Americana). The admission is that the American bushel of oats weighs 32 pounds Both at Fort William and at Buffalo the number of bushels was ascertained by weight, and dividing the number of pounds by 34 at the former, and by 32 at the latter place. Now, it appears in evidence that oats vary greatly in weight, even so much as from 30 to 48 pounds to the bushel. Manifestly, the 32 and 34 pound standards in the two countries are arbitrary figures, based, perhaps, on the experience of average weight over large areas and in various years in each country, if the latter be not on a commendable Canadian desire to give good measure. These particular oats may have weighed 31, 32 or 35 pounds to the bushel. The plaintiffs have given no direct evidence of their actual bulk. Cubic measure has not been dealt with by either party. The amount paid is well within the possibility of that due for the actual space the oats may have occupied. If Canadian law of capacity and not Fort William or Canadian usage as to weight were to apply, the onus would be on plaintiffs to shew that they have been charged for too much space. For that purpose the bills of lading would afford a fair inference, in the absence of anything to the contrary, that the master was satisfied these did not weigh more than those on which Parliament based the 34-pound standard.

Considering, as I do, that whether there was a contract or not the plaintiffs should fail, the defendants' appeal should, I think, be allowed.

Street Railways-Negligence-Front Vestibule-Closing of—Requiring Entrance of Passengers by Rear of Car-Order of Railway and Municipal BoardInjury to Passenger in Attempting to Enter by Front Door-Terms of OrderNecessary to Give Notice of-Finding of Negligence on One Ground-Effect of Negativing Negligence on Other Alleged Grounds.

was

In compliance with an order made by the Ontario Railway and Municipal Board, the front platform of the defendants' cars enclosed by a vestibule having a swing door, fastened by a spring lock on the inside, capable of being opened by the motorman to permit the exit of passengers. The plaintiff, not being aware of this order, attempted to get on a car so equipped at the front, and while so doing, the car started and she was thrown to the ground and injured. She asserted that the motorman saw her standing on the step, and notwithstanding started the car. There was no notice on the door notifying the public of the non-admission by that door. On a charge to the jury that they might find on one or all of the following grounds of negligence, namely, (1) the omission of a non-admittance notice, (2) starting the car while the plaintiff was on the step, and (3) in not opening the door and letting the plaintiff in, they found that the defendants' negligence consisted in the omission to have a non-admittance notice on the door, and did not make any finding as to the other alleged grounds of negligence. The Divisional Court, on appeal to it, while holding that the ground of negligence found by the jury was not tenable, in that the company were merely obeying the board's order, which did not require any such notice, directed a new trial on the other alleged grounds of negligence.

The Court of Appeal, while affirming the judgment of the Divisional Court as to the ground on which the jury found not constituting negligence, reversed the judgment granting a new trial, holding that the finding of the jury was tantamount to a finding negativing negligence on the other alleged grounds.

THIS was an appeal from the judgment of the Divisional Court, setting aside judgment for the plaintiff in an action brought by her to recover damages sustained through the alleged negligence of the defendants.

The action was tried before FALCONBRIDGE, C.J.K.B., and a jury, at Toronto, on March 9th, 1908.

The learned Chief Justice submitted questions to the jury, which, with their answers, were as follows:

1. Were the injuries which the plaintiff sustained caused by any negligence of the defendants? A. Yes.

7-IX. C.RY.C.

2. If so, wherein did such negligence consist? A. No "no admittance" notice on outside door.

3. Or were the plaintiff's injuries caused by any negligence on her part? A. No.

4. If so, wherein did her negligence consist?

5. Could the plaintiff by the exercise of reasonable care have avoided the accident? A. No.

have done to avoid the accident?

7. At what sum do you assess the compensation to be awarded her, if she is entitled to any? A. $750.

Upon these findings the learned Chief Justice entered judgment for the plaintiff for the $750.

From this judgment the defendants appealed to the Divisional Court.

On May 18th, 1908, the appeal was heard before MEREDITH, C.J. C.P. MACMAHON and TEETZEL, JJ.

H. H. Dewart, K.C., for the appellants.

T. C. Robinette, K.C., for the respondents.

July 23, 1908. TEETZEL, J.:-Appeal by defendants from the judgment of Falconbridge, C.J., upon the findings of a jury awarding the plaintiff $750 damages.

Section 79 of the Ontario Railway Act, 1906, sub-sec. 1, provides: "All cars in use for the transportation of passengers in November, December, January, February, March and April in each year, which, while in motion, require the constant care or service of a motorman upon the platforms of the car or upon one of them, shall have their platforms so enclosed as to protect the motormen from exposure to wind and weather in such manner as the board shall approve."

Application having been made to the Ontario Railway and Municipal Board on behalf of the employees of the Toronto Railway Company, the board, under the provisions of secs. 17, 18 and 19 of the Ontario Railway and Municipal Board Act, 1906, on the 17th May, 1907, ordered that "the front platforms of all cars used by

the respondents (the defendants herein) in the city of Toronto shall, on or before the first day of November, 1907, be enclosed to protect the motormen from exposure to wind and weather in the following manner, to wit, by a door to be fastened by a spring-lock on the inside so as to be capable of being opened by the motormen to permit of the exit of passengers."

Though not embodied in the formal order issued, the board in delivering judgment made these observations: "It will be necessary, however, to prevent passengers from entering the car by this front vestibule door. This arrangement will make it necessary for passengers to enter from the rear end of the car and leave the car by the front vestibule door. The board are of opinion that it will be no hardship on the travelling public to submit to this discipline." The car in question was equipped in the manner prescribed by the order.

On December 1st, 1907, the plaintiff, not being aware of the order and of the new equipment, attempted to get on the car at the front. She says the door being closed she stood on the step waiting for the motorman to open it for her, and when he did not open it, she knocked on the door, and "he just pointed with his thumb for me to go to the back of the car, but he did not offer to stop his car at all and I fell."

The motorman denies having seen the plaintiff or having heard her knock on the door, or having motioned to her as alleged by the plaintiff.

There was no notice on the door informing the public that there was no admission through it.

The jury were asked:

(1) Were the injuries which the plaintiff sustained caused by any negligence of the defendants?

(2) If so, wherein did such negligence consist?

Their answer to the first question was "Yes," and to the second "No 'no admittance' notice on outside of door." They also negatived contributory negligence, and assessed the damages at $750.

In his charge the learned Chief Justice told the jury that "the

plaintiff charges that there were three different matters of negligence, any one of which you may find, or all of them; first, in that there was no notice on the door that the door was closed for entrance; second, in starting the car, if you find it to be the case, when she was already on the step; thirdly, in not opening the door to let her in. There is no particular comment that I have to make upon those except this, that with reference to the third one that will involve the finding whether the motorman actually saw her or not. You have heard the evidence about that, whether he saw her, or whether he ought to have seen her, because it amounts to the same thing. It is pointed out that is a very serious charge to make against a man that he would be guilty of such absolute inhumanity as to continue driving a car at an increasing rate of speed if he actually saw a poor girl hanging on there; but if he did not see her and ought to have seen her the negligence of the company is the same thing."

The first question for determination is whether the specific finding of negligence, in answer to the second question, can be supported.

That there was no notice on the door intimating that it was closed for entrance was not disputed. I am of opinion that in the circumstances of this case the omission to provide any such notice was not an act of negligence by the defendants. The defendants by putting the door on complied strictly with the order of the board. That order made no provision for notice, and there is nothing in the circumstances of the case which would impose any duty on the defendants to put up such a notice. The closed door itself, with no facility for opening it on the outside, was ample notice to the public that it was not intended for ingress. Putting the door on was not the voluntary act of the defendants, but a duty imposed upon them by authority of the Legislature, for the non-performance of which they would be subject to penalties. Having performed this duty to the letter, they should not be liable for negligence in omitting something which did not occur to the board as necessary to prevent injury to the public.