decision in the Wisconsin case cited above recommends itself to my judgment. It seems to me impossible to lay down any specific rule for the guidance of railways or street railways generally. In some railways-for example, those whose object, or one of whose objects, is to take passengers through scenery-it must be expected that passengers will lean out to look back or forward; some railways which permit, if they do not invite, overcrowding, which compels some to stand on the steps and project part at least of their frame beyond the line of the car, must expect this to happen, and guard accordingly. A railway operating in a country in which tobacco chewing or gum chewing is not uncommon must expect its patrons, or some of them, to be tobacco or gum chewers, and if it be the custom of such passengers to put their heads past the line of the car in order to expectorate-whether this is due to the prohibition against spitting in the car or some lingering remains of common decency-the railway should be held to know of such custom. And in every case a railway company must take all reasonable precautions against an accident happening to one who is acting as, in the ordinary course of affairs "in the vicinage," it may be expected that some will act. By "ordinary" I do not mean happening always-or every minute, or every hour, or every day, perhaps not every week-but as likely to occur from time to time. It is a matter of common knowledge that tobacco chewers are to be found from time to time upon street cars, that some of them at least are decent enough to get rid of their superfluous saliva over the side of the car, and that, in doing so, they may sometimes be expected to project the head some distance beyond the line of the car. If we are not judicially to say that this is common knowledge, at least it would be a question for the jury. This being so, it seems to me that the company must take means to prevent the occurrence of an accident to a person thus acting. If, for no reason that can be suggested, posts are allowed so near to the rail as that one acting in this way may be struck on the head, they should be moved back. If, as was suggested during the argument, it be the case of a building which cannot be moved, either the railway must itself be moved further away or, if this be impracticable, a screen should be placed so as to prevent the head being protruded, or at least some warning should be given. C. A. 1907 SIMPSON v. TORONTO AND YORK RADIAL R.W. Co. Riddell, J. C. A. 1907 SIMPSON v. TORONTO AND YORK RADIAL R.W. Co. Riddell, J. A screen reaching up to the elbow of a man standing on the platform, so far from being a warning, seems to me, using common knowledge of human nature and human practices, rather to hold out an invitation to lean over it than a warning to keep away from it. At all events, that is for the jury. And what I have said about the tobacco chewer applies to the tobacco smoker. Many, no doubt, would like to see tobacco smoking abolished, but, so long as it is lawful and usual, so long must the railway companies consider it. If, as is, I think, common knowledge (if not, it is for the jury), smokers sometimes and ordinarily expectorate and that over the line of the side of the car, the railway companies should either remove all obstructions from the side of the track a sufficient distance so as to avoid the probability of an accident, or they should prevent the passengers from projecting their heads over the side, or at the least give proper warning as to the danger. There was ample evidence upon which the jury could, as they did, find the cause of the accident to be the negligence of the defendants. In this case the extent to which the head of the plaintiff was projected was not such as to make his act negligence per se, and it was rightly left to the jury to say whether his act, under the circumstances, was negligence at all. It was argued that the plaintiff could not have been struck by a post, as a post that would strike his head would also strike the top of the car. To this the answer is apparent. Supposing that the post were vertical, the car would not be struck at all, while if the post was close to the car any projection from the side of the car would be struck. If, as contended, the posts were planted eighteen inches from the line of rail, it is apparent that the head being seven feet and the top of the car ten feet from the rail, if the post at the bottom was on the same horizontal plane as the rail, at the height of the plaintiff's head-to touch the top of the car three feet higher-the post need not be within five and a half inches of the side of the car. And if, as is indicated in the plan, the post was planted two feet below that plane, the track being elevated above the ground, this would be a distance of four and a half inches. This argument, it seems to me, proves nothing except, perhaps, that the plaintiff could not or did not distinguish accurately the distance his head projected; and, perhaps, it was really "four or five inches," instead of "three or four inches." I cannot find anything in the charge of the learned Judge (fairly read) that is objectionable, and no objection was taken at the trial: Fitzpatrick v. Casselman (1869), 29 U.C.R. 5; Regina v. Fick (1866), 16 C.P. 379. Of course, the fact that no objection was taken at the trial is not in all cases conclusive against the application, but it is so ordinarily. It is true that the trial Judge plainly shewed, in his remarks to the jury, that he thought the plaintiff entitled to their verdict. A trial judge has the right to do this if he sees fit: Dougherty v. Williams (1872), 32 U.C.R. 215; Scougall v. Stapleton (1886) 12 O.R. 206; see per Galt, J., at.pp. 208, 209. It sometimes is his duty to give the jury the advantage of seeing how the evidence has affected his mind, although it is not in practice very frequently found necessary to impress upon the jury the merits of an action against a railway company charged with negligence. All that, however, is for the trial Judge. Then it is said that the defendants were taken by surprise, because, as is alleged, upon the examination for discovery, the plaintiff said the accident had happened a short distance west of the Humber, and therefore the defendants had caused their engineer, Green, to examine as to the position of the posts for only about one-third of a mile west of the Humber. This same evidence was given by the plaintiff at the trial, and it was not apparently till near the close of the evidence that the witness Thompson said that the accident took place about half a mile west of the Humber. No application was made to the learned trial Judge for a postponement, and nothing was said about the alleged surprise at the trial at all. The defendants went on and took their chances of a verdict. We are told that they did not see the full significance of the evidence till the learned Judge was delivering his charge at all events, nothing was said as to any surprise. I am of opinion that it is the duty of any party to an action who claims he has been taken by surprise to apply to the trial Judge for an adjournment. It may often happen that the evidence complained of may be withdrawn, or a reasonable time given to investigate, and, if possible, meet it. Where a party deliberately stands by, says nothing about being taken by surprise, and takes his chances of a verdict, I think it would require a very strong case to be made out to induce a Court to grant the application when he C. A. 1907 SIMPSON V. TORONTO AND YORK RADIAL R.W. Co. Riddell J. C. A. 1907 SIMPSON V. TORONTO AND YORK RADIAL R.W. Co. Riddell, J. comes afterwards to ask for a new trial. Here I do not think any case is made out at all. All that Green did was to examine the position of the poles as they stand now, and that is all that it is suggested he would have done had the information of the defendants been more accurate. He does not know anything as to whether the poles are the same as at the time of the accident. Wilson is the only one apparently who knows anything about the matter of removal of the poles, and he was, at the trial, examined and cross-examined. If any question was omitted that ought to have been asked, that is the misfortune of the defendants, but no ground of surprise or for a new trial. It was apparent before the close of the evidence at what point it would be contended the accident took place, and if Wilson could have given any evidence which would assist the defendants, he should have been asked. It is, I think, apparent that he could not; his recollection is too indistinct. The verdict is not large, and, so far as I can see, the merits of the case are not with the defendants. It must, also, be apparent that if, after the evidence already given, it were attempted by the defendants to make out that no change was in reality made and no poles taken out at about half a mile from the Humber, the attempt would be practically hopeless. The appeal should be dismissed, but without costs, for the reason given by brother Britton. The defendants appealed from the above judgment, and the appeal was argued on November 15th and 18th, 1907, before Moss, C.J.O., and OSLER, GARROW, MACLAREN, and MEREDITH, JJ.A. 1. F. Hellmuth, K.C., and C. A. Moss, for the appellants, contended that there had been no legal negligence on the part of the defendants; that a railway company was under no obligation to place its poles further away than was necessary to give a fair clearance; and that the plaintiff had been guilty of contributory negligence. He cited Beven on Negligence, 2nd ed., p. 1204; Pittsburg and Connellsville R.R. Co. v. McClurg (1867), 56 Penn. 294; Interurban Railway and Terminal Co. v. Hancock (1906), 78 N.E.R. 964; Dun v. Seaboard and Roanoke R.R. Co. (1884), 78 Virg. 645; Holbrook v. Utica and Schenectady R.R. Co., 12 N.Y. (Kernan) 236; Richmond and Danville R.R. Co. v. Scott (1892), 88 Virg. 958; Fahner v. Brooklyn Heights R.R. Co. (1903), 86 App. Div. (N.Y.) 488; Farmer v. Grand Trunk R.W. Co. (1891), 21 O.R. 299; Sias v. Rochester R.W. Co. (1897), 18 App. Div. (N.Y.) 506; and contended that, in any event, there should be a new trial. Loftus, for the plaintiff, contended that the plaintiff had a reasonable excuse for leaning out and acted at the time of the accident in a reasonable and orderly manner, and was entitled to damages without being bound to shew the exact cause of the accident: McArthur v. Dominion Cartridge Co., [1905] A.C. 72; Fenna v. Clare & Co., [1895] 1 Q.B. 199; Snell v. Toronto R.W. Co. (1900), 27 A.R. 151. He also referred to Booth on Street Railways, sec. 360; Spencer v. Milwaukee and Prairie du Chien R.R. Co., 17 Wis. 488 (503); Todd v. Old Colony and Fall River R.W. Co., 3 Allen 18. Hellmuth, in reply. January 22. GARROW, J.A.:-Appeal by the defendants from the judgment of a Divisional Court affirming the judgment at the trial in favour of the plaintiff before Mabee, J., and a jury. The action was brought to recover damages caused to the plaintiff while a passenger on the defendants' electric street railway. Two acts of negligence are alleged in the statement of claim, one that the grate or grating, as it is called, on the rear of the car was so low as to induce passengers to lean on it; the other that the defendants had placed and maintained a trolley post or pole so near the car that a passenger so leaning on the gate would be struck by it. As will appear, the first ground is of no consequence unless the second is also established. Three witnesses were examined on behalf of the plaintiff, namely, the plaintiff himself, one Harry Thompson, and Miss Mabel Farrell. The accident occurred some time after midnight on September 4th, 1905. The plaintiff had been conducting a dancing class that day at Long Branch, a resort some miles to the west of the city of Toronto. The witness Harry Thompson supplied the music for the dancing, and Miss Farrell had apparently been C. A. 1907 SIMPSON V. TORONTO AND YORK RADIAL R.W. Co. |