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1904

Statement.

defects arose from and were not remedied owing to the negligence of the defendants and in consequence of which defects the train became divided and certain cars of said train were wrecked.

7. After Leo Makarsky was injured as aforesaid, the defendants. their servants and agents neglected and refused to provide medical and surgical attendance for said Leo Makarsky, and the said Leo Makarsky died on the second day of October, 1902, as a result of said injuries and the aforesaid negligence of the defendants.

8. The plaintiff claims $5,000.00 damages for the death of the said Leo Makarsky and the sum of $150.00 for funeral expenses."

A number of grounds were urged in support of the de-
They were in effect as follows:

murrer.

"First. That the plaintiff has not shewn his right to sue.

"Second. That the claim should be on behalf of all others entitled to damages as a result of Leo Makarsky's death as well as on plaintiff's behalf, or should allege that the plaintiff is the only person so entitled.

"Third. That the Railway Act in force when the alleged injuries were received required the use of bell signal cord and airbrakes on passenger trains, but made no reference to similar equipment of freight trains and thus, it is argued. enacted by implication that such appliances need not be used on freight trains; that the general allegations of negligence in paragraph 6, following as they do the specific ones as to lack of bell cord and airbrakes, mean nothing more than such specific ones mean, and that therefore no actionable negligence is alleged.

"Fourth. That the plaintiffs pleading should allege that the defendants knew of, and that the plaintiff's deceased son was ignorant of, the alleged defects to which the son's death is attributed.

"Fifth. That the statement of claim does not give all the particulars required by section 9 of cap. 178, R.S.M. 1902, The Workmen's Compensation for Injuries Act.

"Sixth. That it should shew on its face that the death of the son resulted wholly from the injuries and from the negligence causing such injuries, but that it in fact alleges that the death resulted, in part at least, from lack of medical attendance after the injuries, for which lack the defendants are not liable.

As to the first ground, two points were raised.

(a) That the plaintiff did not allege that he was the executor or administrator of the deceased or that no executor or administrator had been appointed, or that one had been appointed but had not brought an action against the defendants to recover damages for the injuries complained of.

(b) That the plaintiff did not allege that he had suffered the loss 1904 of any reasonable prospect of future pecuniary benefit from the

son.

J. A. M. Aikins, K.C., for respondents, the defen- Argument. dants, was directed by the Court to commence the argument. This action was brought under Lord Campbell's Act, or the Act respecting compensation to families of persons killed by accident, R.S.M. 1902, c. 31, and partly under The Workmen's Compensation for Injuries Act, R.S.M. 1902, c. 178. They are statutes relating to the same matter and are to be construed together. It is hard to say under which statute the statement of claim is drawn. Outside the two statutes there is no right of action to the father. The son was killed in an accident. The Common Law will not be interfered with more than enough to give effect to the statute. Plaintiff has not shown in himself any right of action. The rules relating to pleadings in our King's Bench Act are practically those of the Equity Court: Lewis' Equity Pleading, 26, 186, 194. Facts must be pleaded to show the night of the plaintiff to sue. Those who have any antecedent right to sue must be disposed of. If action a common law action, it is solely by c. 31. If it is under c. 178, section three must be looked at to determine the parties to bring the action. They are the same parties as in c. 31, and we must read the two chapters together. No one is "entitled in case of death," except those mentioned in c. 31. By s. 4 of c. 31 an action may be brought in name of parties interested. What What is the right of the plaintiff under c. 31? The action shall be brought in the name of the administrator. He must show either that there is no executor or administrator or that the executor or administrator did not sue within six months. According to the English Rule it is not necessary to set up the performance of conditions precedent. There is no such rule in this Province. If the

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administrator had brought an action within six months Argument. then the plainiff had no right to sue. The point was discussed in Pearson v. C.P.R., 12 M.R. 112. Plaintiff has a springing right which only arises on the happening of events which he has not shown. Plaintiff must sue in a representative capacity: Odger on Pleading, 188; Re Tottenham, [1896] 1 Ch. 628; Warraker v. Pryer, 2 Ch. D. 110. The Court will not allow an amendment when vested rights have arisen so as to alter the position of parties: Weldon v. Neal, 19 Q.B.D. 394. There is a limitation in the Railway Act, in c. 31 and in c. 178. Plaintiff sues personally and does not show the right if he sues in a representative capacity. Plaintiff does not show that he or any person else has sustained any pecuniary injury arising from the death: Davidson v. Stuart, 14 M. R. 74. The statement of claim must show that a loss was caused to plaintiff by the death of deceased: Lewis' Eq. Pleading, 9, 196; Smith v. Kay, 7 H. L. Cas. 767. A pleading must be taken most strongly against the pleader: Dan. Chy. Pr. 567. Plaintiff has shown no locus standi. A statement of claim must not be vague. General allegations must be construed with respect to particular: Frictas v. Dos Santos, 1 Y. & J. 574; Smith v. Kay, 7 II. L. Cas. 767. Par. 6 is vague and defective. It applies only to want of air brake and bell cord. There is a distinction between a common law liability and that under c. 178. The object of c. 178 is to do away with fellow servant defence. It is analagous to the English Act of 1880, and not to the one at present in force. Authorities since 1897 are not applicable to our Act. Odger on Pleading, 89; Ann. Pr. 1904, p. 261; Griffiths v. London, &c., 13 Q.B.D. 259; Miller v. Reid, 10 O.R. 425. There is nothing to show that deceased was not fully aware of the defect or that defendants were aware of it. That is fatal. The defects

complained of are not defects at law. There is no duty

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on defendants to supply air brakes and bell cords on the Argument. train. The Railway Act, 1888, c. 29, s. 243, makes these appliances necessary on passenger trains but not on freight trains. The statute 3 Edw. 7th, c. 58, was passed after the accident and showed that all that was deemed necessary by way of legislation had been provided up to that time: Dynen v. Leech, 26 L. J. Ex. 223; Beven on Negligence, 543; Walsh v. Whiteley, 21 Q.B.D. 378; Butler v. Birnbaum, 7 Times L.R. 287; Winkler v. St. Louis, 38 S. W. Rep. 921; France v. Rowan, 88 Hun, 318. Where a duty is imposed by subsequent legislation it shows that it was not a duty before. Under what statute can it be submitted to a jury to say if the equipment was sufficient, except under c. 178. It could not be imposed by that Act because the Province of Manitoba has not

power so to do. If the Local Legislature .cannot pass enactments relating to the railway it cannot delegate to a jury power to say what is sufficient precaution: Monkhouse v. G.T.R., 8 A. R. 641; Corp. of Parish of Notre Dame de Bonsecours v. C.P.R., [1899] A.C. 369; Madden v. Nelson, [1899] A. C. 626; Larsen v. Nelson, 4 B.C.R. 151. The Dominion Parliament legislated as to part and occupied the field. By s. 9 of c. 178 it is necessary to give the names of persons negligent: Allen v. New Gas Co., 1 Ex. D. 256.

G. A. S. Potts and T. L. Hartley for plaintiff. The statute gives the plaintiff an unqualified right of action.. He is a parent and can maintain the suit in his own name independent of any other person who may have a right to sue. The right of action exists for the benefit of individuals as such and not merely as members of a class: Pym v. Great Northern Railway Co., 32 L.J. Q.B. 377; and the declaration need not negative the existence of any relations entitled to compensation other than those on whose

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It

behalf the action purports to be brought: Barnes v. Ward, Argument. 9 C.B. 392. The English Act by section 4 requires particulars to be given of the persons for whose benefit the action is brought, but there is no such provision in the Manitoba Act. Even were there an executor or administrator, the plaintiff as father has a right to bring the action after six months under section 3, and the particulars in the statement of claim show that nearly a year had expired before the action was brought. After the expiration of six months it is a matter for the defence to allege that a previous action has been brought; but in any event, if the plaintiff should have negatived the bringing of any other action, the objection is purely technical and should not be given effect to upon an equity demurrer, as it does not affect the substance or the merits of the case, and a formal amendment would be allowed as a matter of course. is not necessary to allege that the plaintiff has suffered pecuniary damage by the death of the deceased. This is a matter of evidence only and is expressly so stated by Lord Crompton in Chapman v. Rothwell, 27 L.J. Q.B. 315. This allegation goes to the right to recover damages and not to the right of action which is statutory. As to the cause of action as distinguished from the right of action, the defendants are under a common law liability to see that the condition of the works where the deceased was employed was reasonably suitable and safe for the purpose for which the works were used: Smith on Master and Servant, (1902 ed.), p. 315. Section 243 of the Railway Act does not apply, as we do not rely upon a statutory liability but upon the common law. The servant was entitled to assume that the train supplied was reasonably safe and that the appliances and equipment were at least not dangerous, and we say that the equipment of the train partly with air brakes and partly with hand brakes, rendered the whole brakeing system dangerous and unsafe:

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