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work each to their father to well earn as much as he gave them when leaving. On the other hand, Charles is old enough to at once earn as good a living as he would have got at home if William had not been killed. So he needs no help on account of youth. The only damages allowable in such an action as this are those for loss of prospective pecuniary advantage.

The judgment will therefore be for $2,300 in plaintiff's favour, with costs.

Defendants appealed from the above judgment to the Full Court.

H. M. Howell, K.C., and I. Campbell, K.C., for defendants, appellants. The law was that, if a city or municipality failed to repair a bridge or a road, it was liable on an indictment. A want of repair does not give a citizen a right of action: Wallis v. Assiniboia, 4 M.R. 89; Pictou v. Geldert, [1893] A.C. 527. An act of misfeasance makes a city liable at common law: Patterson v. Victoria, 5 B.C.R. 628, [1899] A.C. 615, where the injury arose from a combination of acts and omissions on the part of defendants as the boring of a beam, rendering it more liable to rot; this was held to be misfeasance and there was a liability in a civil suit. In Gordon v. Victoria, 5 B.C.R. 553, defendants were held not liable. See article on this subject, entitled "How statutory duties can be enforced," in 103 L.T. 75, showing distinctions as to liability in cases of misfeasance and non-feasance. At Common Law a corporation is not liable in damages to a subject for non-feasance but is for misfeasance. The punishment is by indictment. The Common Law duty to repair dates back to the time of Magna Charta. The liability of defendants in this action, if there is any, arises under the Municipal Act, R.S.M. 1902, c. 116, s. 667. The Municipal Act interferes with the Common Law and creates new rights, so there must be a strict construction placed on that Act. The case must come strict



1905 ly within the section. The notice given to defendants Argument. was sufficient as to time. It must be served on the Clerk of

the municipality. The complaint is that the municipality, through negligence, did not repair the bridge. As to notice of action: City of St. John v. Christie, 21 S.C.R. 1; Howell v. Armour, 7 O.R. 374; Biggar's Municipal Manual, 512; Kelly v. Barton, 26 O.R. 608. A duty to repair does not include a duty to rebuild: King v. Devon, 7 D. & Ry. 147; Rex v. Cumberland, 6 T.R. 194; 3 B. & P. 356. Standing by and seeing dangerous traffic go over a bridge does not increase the liability of the City: Angell on Highways, s. 296. This action was not brought on the ground that the bridge was originally improperly constructed. The only case is one of non-repair. There is no case of misfeasance, only one of non-feasance: Robinson v. Workington, [1897] 1 Q.B. 619. Where the bridge was originally strong enough, the City was not bound to make it stronger. The onus of proving negligence was on plaintiff. The City Council took reasonable care. There was no negligence in the City. See also 4 A. & E. Ency. of Law, 935; Board of Comrs. v. Chips, 29 N. F. Rep. 1066; Coulter v. Pine, 164 Penn. St. 548; 21 A. & E. Ency. of Law, 522; Reg. v. Epsom, 8 L.T. 383; Biggar, 835; see also article entitled, "Recent Highway Cases," in 41 Sol. J., 637.

C. P. Wilson and J. F. Kilgour for plaintiff. Traction engine traffic was ordinary traffic on the bridge in question, so found by the trial Judge. It was not a safe bridge for existing traffic. As to the duty of a municipality to test a bridge to see if affected: Macdonald v. South Dorchester, 29 U.C.C.P. 249. There was a city engineer employed and he should have made an inspection; the danger line was exceeded even if the timbers had been sound. Repairs should have been made to suit the traffic as it grew and changed. As to the obligations of a municipality to keep pace with existing conditions;. Reg. v. Henley, 10 L.T

110; Reg. v. Ellis, 8 Q.B.D. 466; Wallington v. Hoskins,


6 Q.B.D. 206; Manley v. St. Helens, 2 H. & N. 840; Judgment. Lucas v. Moore, 3 A.R. 602. There was carelessness on DU BUC, C. J. the part of the City. The planking on the approach had PERDUE, J. been taken off the main bridge. The surface of the planks was worn and uneven, thus increasing the vibration. The bridge was strong, the approach was a trap. A corporation is liable for misfeasance independent of statute. In Manitoba a corporation is liable for non-feasance, because the statute says so. Section 667 of the Municipal Act was passed on account of the decision in Wallis v. Assiniboia, 4 M.R. 89. Here there was a combination of both misfeasance and non-feasance. In Patterson v. Victoria, 5 B.C.R. 628, [1899] A.C. 615, it is called a combination of omission and commission. In British Columbia, with the law in the same state as ours was when Wallis v. Assiniboia was decided, the Court held that non-repair may be misfeasance. As to the notice of action: Martins v. Upcher, 11 L.J. N.S. Q.B. 291; City of St. John v. Christie, 21 S.C.R. 6. The Imperial statutes require that the Court be named, also attorney, cause of action, time and place, explicitly The Manitoba statute says "notice of such claim": Bond v. Conmee, 16 A.R. 398; Langford v. Kirkpatrick, 2 A.R. 513; Green v. Hutt, 51 L.J.Q.B. 640; Madden v. Kensington, [1892] 1 Q.B. 614; Union Steamship Co. v. Melbourne, 9 A.C. 368. The tendency is not to give weight to technical or trivial objections. Could the City be misled in any way?

4th March, 1905.-DUBUC, C. J., and PERDUE, J. delivered oral judgments:-That the defendants' appeal should be dismissed with costs, and the verdict for plaintiff affirmed, for the reasons and on the grounds stated by Richards, J., in the above judgment.




Before DUBUC, C.J., and RICHARDS, J.

Railway Company-Loss of wheat shipped by railway-Railway Act, 1888, s. 246, s-s. 3-Weights and Measures Act, R.S.C., c. 104, s. 21 -Manitoba Grain Act, 1900 (D), c. 39, s. 9—Indorsement of bill of lading.

1. When it clearly appears that the loss of goods shipped by railway must have been caused by the negligence or omission of the railway company or its servants, the company is precluded by sub-section 3 of section 246 of the Railway Act, 1888 from relying on a condition of the bill of lading exempting it from liability for any deficiency in weight or measurement.

McMillan v. G.T.R., (1889) 16 S.C.R. 543, followed.

2. The certificate of a weighmaster under section 9 of The Manitoba Grain Act, 1900, being only prima facie evidence of the weight of grain in a car, may be rebutted.

3. The indorsement of a bill of lading to a bank for collection, though it passes the property in the goods, does not prevent the shipper from bringing an action in respect of the loss of the goods, if he still has an interest in them.

Leggett on Bills of Lading, 626; Brill v. G.T.R., (1880) 20 U.C.C.P.
440, and G.W. Ry. Co. v. Bagge, (1885) 15 Q.B.D. 625, followed.
4. Section 21 of The Weights and Measures Act, R.S.C., c. 104, does
not apply to a contract for carrying wheat by the carload, al-
though the number of bushels in the car had been ascertained
by bag measurement.

Manitoba Electric & Gas Co. v. Gerrie, (1887) 4 M.R. 210, and
Macdonald v. Corrigal, (1893) 9 M.R. 284, distinguished.

ARGUED: 13th December, 1904.

DECIDED: 4th March, 1905.

THE plaintiff sued to recover the value of a quantity of wheat which he alleged was shipped by him over the defendants' railway and was not acounted for by them.

The case was tried at the Fall assizes at Portage la Prairie, before Perdue, J.

E. Anderson for the plaintiff.

J. H. Munson, K.C., and D. H. Laird for defendants.

The facts are stated in the judgment.



PERDUE, J.-In September, 1902, the plaintiff loaded a PERDUE, J. car of the defendants with wheat at Oakland station, to be shipped to Port Arthur. The car was a new one in good condition. Its nominal capacity was given as 60,000 lbs., but its actual capacity was considerably in excess of that amount. When carrying wheat its nominal load would be 1,000 bushels, but it was customary to ship more than that quantity in such a car. The plaintiff loaded the car on 23rd and 24th September, and the agent sealed it and billed it to Port Arthur. The plaintiff claimed that there were 1,334 bushels of wheat in the car, but the defendants only accounted to him for 800 bushels and 10 pounds.

The wheat was placed in the car by the plaintiff's men, who drew it with teams from the threshing machine as it was threshed. A man was kept at the car to assist in the loading and he kept an account of the number of bags of grain delivered. This man, John Archer, proved that 585 bags of wheat went into the car on the 24th, and, in addition to that, a load of 30 or 31 bags was put in on the 23rd. The evidence showed that each bag would contain at least two bushels and on the average would exceed that quantity per bag. There was also a tally kept at the machine of the amount of grain turned out.

Mr. Fulton, a prominent farmer living near Oakland, loaded a similar car with wheat at the same platform and on the same day that the plaintiff loaded his car. He several times looked into the plaintiff's car during the day and when he looked at it last he thought it was loaded quite a bit beyond its capacity and that it was loaded much the same as his own. He put 595 bags into his car and received from the defendants an out-turn of 1,292 bushels.

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