That is a farm crossing, what you call a private crossing. He has no right of action if the gates were not kept closed, or if they were wTil fully left open, or if the fence was taken down, or if the cattle were turned within the railway enclosure, or if they were on 'the railway without consent. It was decided by the courts of Quebec, Ontario, and I think, Manitoba, that if a man allowed his cattle to run around his buildings and they got on the track and were killed, he had no action against the railway company. I know of a case where a man had his cattle in an ordinary farm-yard, in the winter. He did not keep the bars up, or the gates closed, and the cattle got out and got on the track, and were killed. The courts held that he could not recover because he had been guilty of negligence, and should not have allowed his cattle to roam at large. If my hon. friend takes section 387 of the Act as amended, he will find the railway company is practically an insurer, and practically must pay for any damage occasioned, unless it can show it kept proper gates and lawful cattle guards. Of course, if it does that, and an animal gets through the company should not pay. To all intents and purposes you may say the company now insures the lives of the animals, provided they maintain proper gates and lawful cattle guards.
The board has the power to prescribe what shall be a lawful cattle guard. I cannot tel'1 offhand what the regulations are, but I have sufficient faith in the board to feel that they will provide the best cattle guard known to them.
There have been a great many thousands of dollars spent by the Government, and I know it has been a question as to which is the best cattleguard. I think they have all come back to the old slat on an inclined plane. However, that is the general principle of law. You will find that all the rights of the farmer are protected. Of course, if he leaves his gates open, or throws down his fences, or turns his animals loose upon the highway, he has no right to claim compensation and the company should not be liable.
There has been a great deal of loss suffered by farmers. I remember a man who had twelve or fifteen cows;
they got out on the line during the night through accident and were killed and he got no compensation. They talk about having a cattleguard. The hon. member for Carleton says that they have wooden slats in some places and that in others they have iron. Of course, these guards are frequently out of repair. They have another kind constructed of square sticks and the cattle walk right over it.
I had a stronger case than that in the last six months. A client living within thirty or forty rods of a small country station and siding lost some stock. In New Brunswick our farms are not fenced on the road. We have no highway fences, and this man's cattle were around his premises as they ordinarily were. They got on the track where there were neither fences nor cattleguards. When I came to go into the matter I saw by the authorities that I had no chance of winning the case. The farmer was guilty under the decisions of allowing his cattle to stray away and he had no right of action.
It is a great hardship to have to fight a railway company before the courts. In my own constituency there have been a lot of cattle killed in years gone by, farmers have suffered great losses and very seldom have they been able to get compensation for those losses. I would like to read a portion of a letter to explain what has happened in the constituency of Dauphin. The writer says:-
A few years ago there were several horses killed on the track at Valley river inside the fences and the case was taken to the Commission, asking for damages. Chairman Mabee ruled that the claim was just but it was beyond the power of the Commission to compel the railway to put in guards that were of any use or to recompense the farmer for loss sustained.
While the Railway Commission ruled that the guards were inefficient and that the railway should pay damages for the animals that were killed; they had no power to force the company to pay. The Railway Commission should have power to make a railway company pay a farmer for cattle that are killed. If the railway company are liable there is no reason why the Commission should not have power to compel them to pay damages and not put the farmer to the expense of enforcing his claim in the courts. The writer goes on to say:-
There has been at least five times the stock killed on the main line between Dauphin ana Ashville as there has been between Dauphin and Valley River. The line to Valley River has no fence and the Ashville line is fenced.
The reason for that is that the cattle-guards are absolutely useless, and if the cattle get over the cattleguard and stray upon the railway, when the train comes along, they are fenced in there and cannot get out. I am speaking of wild, unsettled land. Where the railway track is not fenced there is not so much danger. The letter continues:-
The stock walk across the cattleguards and are then trapped between the fences. The slaughter has started this year again. Two horses were struck Saturday morning; one killed; the other had its leg broken. As a precaution we farmers are going to fence across the road at the crossings, putting a gate at each side. How long that will be allowed to stay I don't know, but something has to be done if we are going to have any use of the thousands of acres of vacant land that the settler has to pay the taxes on, both school, municipal and patriotic, and build roads past. In our school district there are over twenty quarter-sections that do not hear taxes and a number more that the tax is very light. The same with the war appropriation ; it is distributed to the districts in proportion to amounts received so the only way to get anything off this vacant land to keep stock and pasture it. We get a lot of advice about keeping more stock, producing more, our duty to our country, etc., but very little about our country's duty to us. There ;s very little encouragement to keep stock if the railway is allowed to slaughter them as they have in the past.
The Kailway Commission should have power to force the railway company, where they find they are liable, to pay the farmer without putting him to any more expense. It is very important that the farmer should get protection along that line to encourage him to increase his stock. I am sure that hon. gentlemen opposite know what it is to fight a railway company. Any farmer of small means has no chance whatever if he goes into court against a railway company. They will beat him if they can. I would respectfully ask the Minister of Railways to consider this matter and see if he cannot give the commission more power to force the railway companies to pay for any stock that they are entitled to pay for.
The other evening we passed a clause prohibiting cattle being allowed to run on the road within half a mile of the railway, although we admitted that we did not have authority to do that. We assumed that we had that right, and now we give the railway companies the benefit of another clause here which says that:
Where any such animal, by reason of being at large within half a mile of the intersection of a highway with any railway at rail level contrary to the provisions of section 278, is killed or injured by any train at such point of intersection, the owner of such animal shall not have any right of action against any company in respect of the same being so killed or injured.
It seems very extraordinary that, having passed one clause, which we practically admitted the other night we had not power to pass, we give the railway company the benefit of another section, that if cattle are running within half a mile of the railway and accidentally get on the track and are killed, the owner will not have any claim for damages.
Does my hon. friend realize that these cattle are at large within half a mile of the railway crossing, that they get on the track at the crossing and are killed at the point of intersection? The railway company must run their trains, and the man who permits his cattle to run at large with nobody looking after them and to get on the highway crossing should not have any right to come back on the company. .
I know, but we passed that other clause making it illegal to allow cattle to run within half a mile of the railway, and we could not pass this clause if we had not passed the otheT. Because we assume in this section that since it is illegal for an animal to be on the road within half a mile of a railway, if it strays oil the railway and is killed it is illegally at large and the company have no liability.
hon. friend. If the animal is killed on the intersection of highway and railway _ the company is not liable, but if the animal strays from the highway on the railway right of way, unless the company have competent gates or cattleguards, the company is responsible. That is provided in the first part of section 387. Thus, even if you allowed your animals at large within half a mile of a railway, and they got across a defective cattleguard and were killed, you could still recover from the company. But if they were killed at the point of intersection they would have no business to be there and the company would not be liable.
This has been amended by inserting in' the part of the first section providing that the insurance on property destroyed by a fire caused by a locomotive shall be deducted from the total amount of damages sustained by any claimant, the words:
Where the company has used modern and efficient appliances and has not otherwise been guilty of negligence.
It was thought unfair that the railway company should have the benefit of the owner's insurance against fire in a case where the fire was- due to the company's negligence.
I beg to move an amendment to the first clause of this section. The section begins:
Whenever damage is caused to any property by a lire started by any railway locomotive, the company making use of such locomotive, whether guilty of negligence or not, shall be liable for such damage.
I would propose to strike out the words "making use of 6uch locomotive" and to substitute: "operating the railway on which the locomotive is moving," and to add at the end of the first paragraph of this clause the following proviso:
Nothing in this clause shall prejudice the right of the said company operating the railroad to recover such damages from the company whose locomotive caused the Are.
My reason for proposing this amendment is that there are many companies having only a right of way on other lines For instance, in my riding the Delaware and Hudson and the Central Vermont have a right of way on the Grand Trunk, and the Rutland has a right of way on the Canadian Pacific. Two years ago I had a case against the Grand Trunk for damages to property caused by fire started by a locomotive moving on the Grand Trunk railway line. The Grand Trunk especially pleaded that it did not make use of that locomotive, but that that locomotive was owned and used by the Delaware and Hudson. As it happened, I won the case, although I do not know what would have happened on an appeal. It is quite impossible for a farmer,'for instance, to determine which company is making use
of the locomotive which caused the fire. If the words of this clause as it stands now were to be interpreted literally, the Tight of action would be illusory, and I think we should make it clear in order to remove, if possible, all ambiguity.