Central Railroad Company, presented at the recent assizes for the county of Essex.

By reason of the fact that the defendants have pleaded guilty, I must, in order to pronounce the appropriate sentence, examine into the facts, and that I am able to do only by a perusal of the sworn evidence at the coroner's inquest holden a few days after the casualty. At this inquest the defendants were represented by counsel, who took an active part in crossexamining witnesses-and I think that the facts must be fairly well established by such testimony.

It seems to me that the following was the course of events. The Pluto Manufacturing Co of Emporia, Pennsylvania, shipped a quantity of dynamite under the name of "powder," paying double first-class freight rate. At Black Rock, in the State of New York, this was received by A. D. McAllister of that place, foreman of the freight house and yards of the New York Central and Michigan Central Railroad Companies. He says that he did not know or suspect that this was dynamite, but supposed that it was simply powder cartridges-gun cartridges. He loaded the explosive into a car borrowed from the New York Central Railroad Company, apparently a barrel of oil, and some iron pipe, a number of their "powder cards," containing a warning that the car contained high explosives, and placed these cards upon each side of the car. No care was taken by him to see that the car was proper for carrying high explosives: and in the car were placed bars of iron and a number of other parcels, the car being filled as an ordinary way car or main line freight car is filled. All the experts say that a car containing nitro-glycerine or dynamite should contain no other freight. The car was taken up by P. H. Sheridan, a conductor on the defendants' railway, and brought by him to St. Thomas, arriving there at 8.50 p.m. of 7th August, 1907. The car had been opened at Welland, and part of the freight taken out there; and on its arrival at St. Thomas it was "switched to the freight foreman" at the freight house. At that point the freight foreman, William Stubbs,

found the car on the morning of the 8th-it was then sealed but had in it goods consigned to St. Thomas, a coil of rope, two boxes (one of them hardware), and some plates of steel. These were taken out, leaving nothing in the car but the boxes of "powder" and apparently a barrel of oil, and some iron pipe. The car left St. Thomas on the morning of the 9th at 7.10, and arrived at Essex at 2 p.m. of the same day. The car was opened at Ridgetown, and it was found that two or three boxes of the explosive had shifted and were on edge; and the conductor, Alexander McIntosh, knew that it was explosive he was carrying, but did not replace the boxes or touch them. The car was left at Essex near the freight house. Next morning at about 7.40 the car was "found" by conductor Thomas of the Amherstburg train, and on being moved in making up his train, cracking was heard on or under the car. The conductor then examined the car and found it loaded with boxes of dynamite, and it was found also that the boxes were leaking and the fluid from the boxes had leaked and was still leaking down through the bottom of the car-4 or 5 of the boxes being out of place. The boxes were righted, but no pains taken to wash the floor or the axles, bolsters, or running gear of the car. The barrel of oil and iron pipe were taken out of the car, and 5 or 6 pieces of freight were put in. The car was placed next to the engine, and, after being moved about for a time, the cracking noises continuing loudly, a terrible explosion took place, killing two men on the spot, and more or less seriously injuring about 40 others. Some of the expert evidence tends to shew that, had the boxes been so loaded that they could not get out of position, and so that no other freight could strike them, there would not have been so much danger.

No care seems to have been taken by the company to see to it that those in charge of this high explosive knew how to deal with it no one was sent with the shipment to attend to it; but this fearfully dangerous substance was shipped with no more care and precaution than a carload of potatoes. It makes one's

blood run cold to consider the history of this car-an ordinary car, leaky, loaded partly with dynamite and partly with other freight, shunted into the yard at St. Thomas, left there all night, taken the next day to Essex, shunted there in the afternoon, and staying there a day and a half shunted backwards and forwards with detonations like pistol shots-and no one taking the slightest care.

It is true that there were placards shewing that the car was laden with high explosives, and that is the reason apparently why the Board of Railway Commissioner declined to allow a prosecution under the Railway Act. Had it not been for this refusal, I should have thought that so to placard an ordinary freight car would not be sufficient to make such a car "designated for the purpose" as required by the Railway Act.

It may be well to say a word or two as to the right of railway companies, under circumstances like the present-to see how far the defendants were called upon to act as they did. At the common law it is clear that no carrier could be compelled to carry such goods as these, dangerous in their nature. Common carriers are not bound to receive dangerous articles such as nitro-glycerine, dynamite, etc.": "Cyc.," vol. 6, p. 372 B; 3 Wood's Railway Law, sec. 426; Hutchinson on Carriers, sec. 113; California Powder Works v. O. and P.R. Co., 113 Cal. 329; Railroad Co. v. Lockwood, 17 Wall. 357. And it is the clear duty of those offering such goods for shipment to notify the carrier of their nature, that all due precautions may be taken.

The Railway Act does not take away this right of railway companies which they had at the common law, but, on the contrary, expressly provides that the company shall not "be required to carry upon its railway, gunpowder, dynamite, nitroglycerine, or any other goods which are of a dangerous or explosive nature": R.S.C. 1906, ch. 37, sec. 286. And the Act goes on to provide that "every person who sends by the railway any such goods shall distinctly mark their nature on the outside of the package containing the same, and otherwise given notice

in writing to the station agent or employee of the company whose duty it is to receive such goods and to whom the same are delivered": R.S.C. 1906, ch. 37, sec. 285 (2). And further: "The company may refuse to take any package or parcel which it suspects to contain goods of a dangerous nature, or may require the same to be opened to ascertain the fact": R.S.C. 1906, ch. 37, sec. 287.

It will be seen that the Parliament of Canada have taken great care in protecting railways, and have made that definite and certain which formerly was to be gathered in a more or less indefinite form from such cases as Crouch v. London and NorthWestern R.W. Co., 14 C.B. 255; Brass v. Maitland, 6 E. & B. 470; Farrant v. Bowes, 11 C.B.N.S. 555; Nitro-glycerine case, 15 Wall. 524; Edwards v. Sherratt, 1 East 604; Boston and Albany R. Co. v. Shanley, 107 Mass. 568; Pate v. Henry, 5 St. and P. 101.

It is open to a railway company absolutely to refuse to carry any goods of this character, and there exists no authority which can compel the company to do so. The company then may fix such a rate as to enable them to use all the care and employ the number and kind of servants necessary for the safety of the public. The statute provides that "the company shall not carry any such goods of dangerous nature, except in cars specially designed for that purpose, on each side of which cars shall plainly appear in large letters the words "dangerous explosives': R.S.C. 1906, ch. 37, sec. 287.

This provision, however, give the minimum of what is required of the company; and these defendants themselves have recognized, and indeed it must be obvious, that much more may and in many cases will be demanded than an observance of this section. In this case it is well, in my humble judgment, that the statute is not exhaustive, as, in order to indict a railway company under this section, it is necessary that the leave of the Board of Railway Commissioners shall first be obtained.

R.S.C. ch 37, sec. 411, fixes the penalty of $500 for an of

fence against the section of the Railway Act already referred to (sec. 287), and sec. 431 (4) provides that no prosecution shall be had against the company for any penalty under this Act in which the company might be held liable for a penalty exceeding $100, without the leave of the Board being first obtained. Upon application to the Board they declined to allow a prosecution under sec. 287 without further evidence.

No indictment, therefore, was preferred based upon the Railway Act, but the defendants were indicted under secs. 221 and 247 of the Criminal Code. Another count was added under sec. 279 of the Code, but that was withdrawn by the Crown, and the defendants were called upon to plead upon the following indictment:

"The jurors for Our Lord the King upon their oaths present that the Michigan Central Railroad Company on the 9th day of August, in the year of Our Lord 1907, at the town of Essex, in the county of Essex, and at other places in the said county, were guilty of a common nuisance. And the jurors aforesaid upon their oath aforesaid do further present that the said Michigan Central Railroad Company, at the time and places aforesaid, were guilty of an indictable offence in that the said the Michigan Central Railroad Company had then and there under their charge and control certain inanimate things, to wit, a certain car loaded with an explosive substance, and the said explosive substance, the said inanimate things, being such that they might, in the absence of precaution and care, endanger human life, and thereby the said the Michigan Central Railroad Company became and was under a legal duty to take reasonable precautions against and use reasonable care to avoid such danger, but that the said the Michigan Central Railroad Company then and there omitted without lawful excuse to perform such duty."

In charging the grand jury, I directed them that if they found that the company had done all that was reasonable in