ii

i. I race rouirreazs j

...:I... nu--L-u

' would render

Iassi-not Jumioiii .

wconunaeorromrsgoii

and that such " ed in falllnsto maintain a sign- board at the iwei crossing pur- suant to Bortlon 26'! of The Rail- way Act. The Jun fin-tine found that neither Chester Burke nor the deceased was guilty ,ony negligence causing 'or co thug. in! to the accident.

"rho trial Court entered judg- ment upon the ury's findings in the sum of and costs. ' i"'nis Apoclianrsppesis to the full Court against; the alleged in- ad-on-er of the compensation swardod. The Railway ci-on.ap- rolls against the judgment on thy ground of tho perversity-of the jury's finding that the col- lision had been caused by the Raliway's negligence. '

"At the trial. Chester Burke Iliad been msdo a third party. but the Railway does not appeal ggainst his exoneration by the ury.

l.ailway's Contention

"There can, we think. be no question that the Raiiwayls fail- ure to see to the replacement of the highway crossing sign, which had been temporarily taken down by a highway construction firm, constituted negligence which the Railway liable if it was an effective cause of the collision. The Railways coun- sel. however, strongly maintains that the absence of the sign was not an effective cause of the ac- cident. but that the sole effective cause was the negligent driving of Chester Burke.

"We think that the evidence is almost strong enough to support the Railways contention on this point. Burke. as he approached the scene of the collision. saw what he took to be an intersec- tion of some kind leading into the highway from his right. If Burke had been maintaining any- thing like a reasonably careful outlook to guard his right at the intersection which he thought he was approaching. he could have seen. at some distance from the crossing. the whole train. includ- ing twelve cars and the engine.

"At that time. an air whistle was sounded on the rear pass- enger car. the regular horn was blowing on the Diesel engine. and the engine's bell was also ringing. Both the motor car and the train were proceeding at mod- erate rates of speed. the train at 18 or 20 miles per hour. and the mdtor car at not more than 20 miles per hour.

"Burke actually saw the train when he was still 45 feet away from it. or a distance of approx- imately 32 feet from the inter- section. At his rate of speed, if his brakes were workint! Proper- l.v. he would still have had ample time to bring his car to a halt before reaching the railway cross-

g. .

"These factors seems to us to amount to almost convincing ev- idence that Burke should have

had. and did tan. a clear chance of avoiding any collision. even if. by reason of tho Rsllway'a neg- " in " ' - the crossing sign to i di ,' " he was actually not aware that ho was approaching a railway crossing.

Not lafllolont

"For the purpose of this appeal. however. and as between the Ap- pellant and the Railway. it is not sufficient to establish that the fault was principally or practical- ly altogether, that of Berks or of someone other than the way. If the hallways negligence ef- fectively contributed to the col- listen in any degree. the Railway is liable to the Appellant in the full amount of the compensation awarded. Although it appoarsto us to be a reasonable inference from the evidence that Burke had a clear chance to avoid any coi- lision. and that therefore the Rail- way's prior negligence did not ef- fectively cause the collision in any degree whatever. yet we are not prepared to say that such is the only rsasonablo inference. "The emergency which may arisg at an intersection of a rail- way with a highway is of a diff- erent nature from that which may be anticipated at an intersection of two highways. Two motor veh- icles approaching a highway in- tersection at moderate speeds. even if they do not see each oth- er until they have practically en- tered the intersection. can usual- Iy deceierato rapidly enough. and manoeuvre their positions skill- fully enough. to avoid a collision. With a railway crossing. that is not the case.

"The train' is large and heavy, and when it enters the inter- section it occupies the whole area devoted to its right of way; it cannot manoeuvre its position on the crossing to any extent what- ever; nor can it decelerate rap- idly enough to avoid an immin- ent collision; as is obvious from the fact that the Respondent's train. driven at about 18 miles per hour, required 400 feet to come to a stop. although the em- ergency braiie was effectively ap- plied. and the train's engineer considered that he made a good stop)

Crossing Sign lasportant

"These factors indicate the im- portance of the maintenance of highway crossing signs along the railway's right of way. and we have come to the conclusion that it was not unreasonable for the jury to infer that the absence of the crossing sign was an effec- tive cause of the collision. It would be an entirely different question if we were asked to pro- nounce an opinion as to the reas- onableness of their finding that the Railway's negligence was the sole effective cause. That ques- tion. however, does not arise as between the immediate parties to this appeal.

"We are therefore. with some reluctance. forced to disallow the

M ms 1 GUARDIAN.

CHARLOTTUFOWN

"As to the main appeal on the questi of inadequacy of coin- pensstion.- We are of thogopinion that the jury, having found. as they did. that tho R.ailway's neg- ligence was the solo affective cause of the collision and of the consequent death of Robertson. might well have allowed a larger compensation to his widow and family. If we were asked to fix the a of compensation in the first instance we should. in Iii probability. uses: it at 2 in or 3 times the amount allowed by the fury.

"We are also not forgetful of the fact that recent authoritative cases have perhaps indicat " a narrowing of the margin of dis- cropancy. which entitles a Court of Appeal to increase or dimin- ish the amount of general dom- ages or compensation awarded by a jury's verdict. '

Gases Cited

''In the case of Nance v. E. C. Electric Railway Co. (1951) 3 D. L. R. 705. the jury awarded gen- eral damages or compensation in the sum of 535.000. The 'opinion of the threeIJudgea of the Bri- tish Columbia Court of Appeal all regarded this amount as be- in: excessive. the Chief Justice arriving at 820.000 as a proper figure. Sidney Smith. J. A.. favor- ins 512.000, and 0'l-lailoran. J.A., favoring a new trial.

"On appeal to the Privy Coun- cil. in spite of the very compli- cated factors appearing in the case. Viscount Simon said that their Lordships were satisfied- that a jury could not reasonably have computed the total recover- able damagc at a figure exceed- ing 522.500. He added: This fig- ure in their view falls short of the 335,000 awarded by a margin wide enough to justify the Bri- tish Coiumbia Court of Appeal in rejecting the juryls figure! By request of the parties. the Board proceeded to determine the pro- per amount of damages to be awarded. which was thereupon fixed at 322.500.

"In Pick v. B. C. Electric Rall- way Co. (1951) 1 D.L.R. 81. the jury awarded general damages of 816,500. The British Columbia Court of Appeal reduced the find- ing of general damages to 311.- 500. The Supreme Court of Can- ada confirmed this reduction. al- though Kerwin. 1. who delivered the majority judgment. indicated that an intermediate sum might have been proper. Of the dissent- ing Judges. Taschereau. .7.. stat- ed that the jury's award was per- haps larger than he would have pcrsonaily given, but he did not see that it was plainly unreason- able and unjust; while Cart- wright. .I.. did not find anything shocking in the original award. nor did he view the sum award- ed as being so large as to indi- cate that the jury proceeded on any improper principle or fail- ed to perform their duty of act- ing reasonably and judicially in the matter.

rule as uequonti stated in ear- lior cases that an appellate tri- bunal should not disturb the find- ing of a jury as to the measure of general damages unless the award is so excessive as to shock the ----in ” of . ” persons. or so utrageoua as no reasonable Jury could give.

Margin of -Discrepancy

"It should be observed, how- ever. that both the cases Just cited involved the downward re- vision of a jury's award. It would seem logical that a wider margin of discrepancy would be neces- sary to justify an upward ro- vislon. than a downward ro- vision. In other words. it is an easier thing for an appellate court to be sure that such and such a sum represents the maxi- mum ressonsbie award. than to conclude that such and such a sum represents the minimum reasonable compensation. In other words, the factors which operate to determine the minimum of the margin of . asonabionoss are more variable than those which go to determine the maximum.

"We find in the present case so many incaieuiablo factors and possibilities. such as the various ages of the respective children; the possibility that they may be moyried or become earners them- selves at an early age; theipos- sibility that the widow herself may re-marry; the possibility that the deceased himself. had he liv- ed, might be un pioyed season- abiy or in the fI.ETre. or that his -ability to earn mght not last for the full period of the joint life expectancy; the ,ossibie benefits accruing to the widow under the will of the deceased; as well as the general bearing of various social security benefits; that we are unable to say that the amount of compensation awarded by the jury was wholly unreasonable. or so inordinately low that sen- sihle jurors could not reasonably have awarded it as an adequate compensation. . ."From the materials appearing upon the record. it would seem clear that the jury, in reaching their assessment of compensation, did not take into consideration the disbursementi made for fun- erai expenses. As these are speci- fically allowable by The Fatal Accidents Act, S. 10. we thing they should be added.

"Per Curiam: The judgment of the Court will therefore be that the cross-appeal be disallowed. and that the appeal he allowed only to the extent of adding the funeral expenses, 5177.50. to the compensation awarded by the jury; and that the amount of the judgment helow be amended to

read 35577.50. "As both Appellant and Re- spondent were partiy successful

on this appeal, there will be no order as to costs of appeal. -Cmjam .

William Hewitt. the Enliilll auth- or who died in 1310. had one poem

"These two decisions appear to

cross-appeal.

indicate some relaxation of the

published when he was only 13 years old.

A-' "ii!l;il'l"r?x.

W imiliilirlialc

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Iedcquo Notes

Her many friends regret to learn that Miss Alsths Noonan is a patient in the Prince Coun- ty . . . I

I083 Now I Dolls 3810 New Oil 32630 N Concord ......

1410 New Dicscn ....... .. 210 t 34100 N Goidvuo .... 5Ii 40(1) N Hlllh Ml! ....... 18 1-3

800 New Jaion 1100 N nasuorro .. ....

children. and Mrs. Calvin Cotton. Tyne Valley and Northern. were guests of Mr. and Mrs. E. 8 Weeks recently.

-Mr. and Mrs. Elliot Wright. Middleton. Prince ,County. left last week to attend the grad- uation of their son. Thompson. at the Guelph Agricultural College. which takes place this week.

Mr. and Mrs. Edgar Clark and Mr. and Mrs. George Clark and two children. Summerside. were visitors at the home of Mrs. Car- rie Schurman on Sunday. May 11th.

Among those from here at- tending the Musical Festival in Charlottetown, on Saturday; May min. were Miss Louise and Miss Mildred Cailbeck. and Miss Emma Johnson. Central Bedeque. 'and Mn. Edna Jenkins, this village. .......

Mr. William Mac!-lariane. Low- er Bedeque. left on Wednesday. May 14th. for trip to the Pacific Coast. He will make headquart- ers with his son Howard in Van- couver. He expects to be away about three months.

Miss Noreen Henderson spent a few days with her parents. Mr. and Mrs. George Henderson. Fernwood. previous to her grad- uation from Prince County Hos- pital on May 13th.

Mr, Donald MacDonald. Ottawa, ' National Treasurer of the C.C.F. party, has been spending a few days In P. Douglas Macl-'arlane. Fernwood.

Bedeque. While here he contact- ed party members in various parts of the Province and was

guest speaker at meetings in Wel- lington and Alberton.

A large congregation assembled in Bedeque United Church on Sunday morning. May 11th. It was the observance of "Mother's Day" and music appropriate to the oc- casion was rendered and the pas- tor. Rev. Mr. Crowe delivered a very fine sermon. em hasir,ing the vital importance of the Christian home.

The monthly meeting of the Bedeque W. I. was held on May 7th at the home of Mrs. Lloyd Jewell. Nine members and one visitor present. Mrs. Walter Bow- ness. in charge of programme. showed interesting pictures and cards of her trip to Florida. Col- lections and donations amounted to 513.50. Next meeting at the home of Mrs. A. A. Mclnnls. Meet- ing closed with National Anthem and lunch served by hostess and committee in charge. -

The "Half Century" Club met

son. on April 28th. Twelve meni- bers answered roli call by, pass- ing in a "white elephant gift. Programme took the form of a questionnaire. and lunch was serv- ed by the hostess. The club met a sin on May 24th at the home cg Mrs. L. Muttert with twelve members present. Plans were made for holding a pantry sale and bazaar on May 3th. An en- joyable programme was carried out which was a clever imitation of the well known radio pro- gramme. "Treasure Trail". This caused much merriment. Lunch wiis served by the hostess.

A three-acttplay was present- ed in Central liedeque Hall on Tuesday evening. May 13th. by members of tho B.Y.P.U.-entitled "Winning Winnie". The hall was filled to capacity. Those takinx piirt.wers: 1-lelon Bownoss. Geor- gie Douii, Edith Maclhvon, Marina MacCsilum. rnyiiil Britten. Alex- ander Green. 0'0!!! CllIPllG"- Leslie Waugh. Wendell Myers and Edward Pearson. The actors did their parts well. considering this vi-ls their first attempt in this line of entertainment. Between acts Elisabeth Green sand I I010 and David Schuri-nan gave a "trumpet" solo. Mrs. Walter Lssrd was pianist for the eve-

i . " "' -no. ............... IIIAVI TIMIPIICII lariy-typo watches were lroaiiy portable clock: with a msinlbring

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17- -1w.l"""5 01 M'- -10000 Rupununi

,Ilr. Thomas Dunn suffered a 7500 Newiund stroke on Saturday. May 10th. His 3500 an nu- frionds hope for an early rocov- um gr uomgon ,, "Y- 3000 N Moshe: i .

llrs. Waiter Gould. mssiiie, ,:.;'3 3 1,, and her daughter Aims and Miss 11”, New Punt. 1, Sylvia Worthers. Halifax, were 2”” N 3,” L " visitors to Bedeoue on Sunday. :3” New .mm,b' : D "" 1"” ' - .13; New superior - coo

Mrs. Fulton si , - ' - 1 " "5 Lot 10. has been ilisiting with 304 N0mldi ----------- 75 1'3 her daughter. Mrs. Ellis Webster 190” "”W”"' -;-------H--'---- 4 7'5 and Mr. Webster. Central 242- 909 Nm'IN'Wi ------w n d.qu.,- 13:12? rial,

.m. orp Mr. and Mrs. George Ellis and 500 NC OH!

1500 N Denison 500 North can 17400 Nor Exton

1000 Obaskx ..

i025 O'Brien .

1000 Ogsms

4000 Oil Belt

3250 Okalta .

1800 o'Losry . 13400 Ont Pyrite!

4300 Opomiska 180 9000 Orlao it 1-2 1100 Oaisiro 83 1450 Plc Pete . 12 3-4

500 Pamour 84 ' 2200 Pan west 8'7 2800 Paymaster 8: i800 Peace Riv 769 6200 Penn-Cob -to

500 Perron 6'! 13500 Petrol 132 3300 Ponder O 240

120 Pics Cr 10'!

775 Placer 40 3-4 . 200 Pr Met 13 1-4 1200 Preston 139

8000 Punch Pete 5500 Que Cop . 4800 Que Lab .

775 Que Man 25i 2400 Queenston 52 25 Quemont 2') 1-4

4500 Quesabe 12 1500 Ranwick 30 7888 Red Poplar 18 11288 Redpic 40

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6000 Bundle Oils

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BANK! 435 lens of llont

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TRINITY EVINING AUXILIARY ,

- The May meeting of the Trin- Ity Evening Auxiliary of the Sum- meraide United Church was held on Tuesday evening, May 13th in Epworth Hall with the President. Mrs. William Bosch in the chair. The missionary worship was in charge of Mrs. Porno Rogers and Mrs. G. Rankin with Miss Mary Geldort at the piano.

The opening hymn "Day is dying in the wet" was followed by a iovbiy reading on The Lord's Pray- er by Mrs. Rogers, after which it was repeated in unison. An inter- esting account of a month spent in Newfoundland by Mrs. Isabel Lovey was read by Mrs. Rankin. The singing of "From every stormy wind that blows" closed this part of th'e meeting.

During the business session a discussion was held regarding the importance of building 5 united

l or Trlinms ” i in Tor- onto. Miss Mabel Linkietter read a. letter from the Supply secretary expressing appreciation for the par- cels sent and encouraging more to be sent for Korean relief. It was reported that another hsd been shipped since last meeting.

The Visiting Committee reported 15 h0lDitai and five house caiia made. Two new members were wei- comed. Two interesting films on Newfoundland were shown by Mr, of thanks was extended to the Y's Men's club for the use of the pro- tector and to Mr. Uiarko for show- ing the films.

After the Mizpah benediction a social hour followed when Mrs, I-laroid Miicf..cnnan and Mrs. mu Mgcllarisna were lunch hostesses.

FILMS

Developing and Printing