1919 shove the cars down into Ogilvie's. If a car was loaded at the Grain Growers this afternoon it would go to West Judgment. Fort to-night and would be shoved down to Ogilvie's tonight or first thing in the morning. Q. That is the practice that is followed? A. That is the practice that is always followed." The evidence shows that the seals on the car were intact on the morning of the 25th, and that the car was a good car and fit for loading grain. Day, who was working at Ogilvie's as a trackman and whose duty it was to look for leaks in cars, examined the car on the 25th February. He states that if there had been a leak in the car he would have reported it on the proper form. The defendants contend that the plaintiffs have failed to show that the loss occurred while the car was in their possession and that to succeed the plaintiffs must do so. The shipping order bears date 24th February 1914. Tremblay, who was the shipping clerk in the grain office, states that it was signed on that date. From his evidence it appears that the practice was for the shipper to make out the shipping order and bring it to the railway company for signature. The loaded car must therefore have been in possession of the Grain Growers from 4.50 on the afternoon of the 23rd, until some time in the morning of the 24th, when the shipping order was signed. Allan, who was a checker at the Fort William yard office, stated that the car in question was at the Ogilvie elevator on the morning of the 24th February, 1914, and that on the morning of the 25th February, 1914, it was still there unloaded. Condition 9 of the shipping order reads in part as follows: "*** Bulk grain destined to a private siding or station where there is no duly authorized agent shall be FULLERTON, J.A. 478 THE MANITOBA REPORTS. VOL. 29 1919 at the risk of the carrier until placed on the delivery Judgment. siding." FULLERTON, The defendants contend that the Ogilvie Siding was a "private siding" within the meaning of the above condition, and that their responsibility ceased on the morning of the 24th, when the car was delivered at Ogilvie's siding. Sellers, the Grain Superintendent of the plaintiff company, was called as a witness for the plaintiff. His cross-examination is as follows: Q. Your Company does business in quite a large way? Q. Like other big companies you have your own sidings at your elevators? A. Q. A. Q. Yes. You know the elevator at Fort William? You have your own siding running up there? Q. And that is where this car was placed? Morgan, who was Superintendent of Terminals at Fort William at the time, says that the plaintiffs' cars were "pushed down to Ogilvie's siding, where they have a sid ing of their own at the elevator." He was asked "Where did Ogilvie's receive grain from the C.P.R."? His answer was-"They received grain at their private tracks at their elevators." Counsel for the plaintiff contended that the evidence showed that the car "was not delivered at the elevator until the morning of the 25th, and that when the checker, Allan, spoke of the car being at the "Ogilvie Elevator" he was referring to the classification switch number 12 VOL. 29 OGILVIE FLOUR MILLS V. C.P.R. 479 on which all Ogilvie's cars are placed before being shoved on their own siding." 1919 Judgment. The evidence satisfies me that he was referring to the FULLERTON, Ogilvie Elevator siding. Allan says that the portion of the yard which it was his duty to check "included the Ogilvie Elevator" and again, that "Ogilvie's is included in my portion of the yard. From West Fort to Ogilvie's was included in my portion of the yard.” Morgan says that track No. 12 is "what is known as the classification yard at West Fort." Lindsay says "No. 12 track at West Fort is for Ogilvie's wheat." It appears to me quite clear that Allan was not referring to track No. 12 in the classification yard at West Fort when he spoke of the "Ogilvie Elevator." The destination named in the shipping order is "Ogilvie's Elevator," which can only mean the siding at the "Ogilvie Elevator." Under the condition in the shipping order I would hold that the car of wheat was delivered at Ogilvie's elevator on the morning of the 24th. Counsel for the plaintiff in his cross-examination of Mr. Morgan suggested the possibility of the car being bored and grain drawn off. If the loss occurred in the way suggested it was more likely to have happened while the car was in the possession of the plaintiff than the defendant. The defendant had the possession of it for only a very short time. Mr. Morgan says that there is no access for teams to track No. 12 from any roads or crossings, while Ogilvie's private siding has a road crossing near the westerly end of the track and another road crossing near the easterly end. J.A. $1919 I think the plaintiff has failed to establish that the deJudgment. fendants are responsible for the loss of the wheat. FULLERTON, I would allow the appeal with costs and dismiss the action with costs. CAMERON and HAGGART, JJ.A., concurred with PERDUE. C.J.M. Appeal dismissed with costs. BOWLES V. WINNIPEG. Before MATHERS, C.J.K.B. Municipality-Winnipeg Charter, 1902, Man. c. 77, ss. 856-872 -Liability for negligence of police constable employed by Board of Police Commissioners-Motor ambulance purchased with City funds at request of Board and used, under its direction and control, for the removal of injured persons to hospi tals-Negligence of chauffeur-Liability of owner of motor vehicle for-Motor Vehicle Act, R.S.M. 1913, c. 131, s. 63A, added by 5 Geo. V, c. 41, s. 14-Judgment. 1. A police constable appointed by the Board of Police Commissioners of the City of Winnipeg and acting under the orders of the Board is not a servant or agent of the City and neither the City nor the Board is liable for any negligent act of his committed while in the discharge of his duty as such police constable. McSorley v. St. John, (1882) 6 S.C.R. 531; McCleave v. Moncton, (1902) 32 S.C.R. 106; Garbutt v. Winnipeg, (1909) 18 M.R. 345; Wishart v. Brandon, (1887) 4 M.R. 453; Kelly v. Barton, (1895) 26 O.R. at 623, and Maximilian v. New York, (1875) 62 N.Y. 160, followed. Hesketh v. Toronto, (1898) 25 A.R. 449, and Shaw v. Winnipeg, (1909) 19 M.R. 234, distinguished because in them the negligence complained of was that of officials directly appointed and controlled by the City. Young v. Travenhurst, (1910) 22 O.L.R. 291, (1911) 24 O.L.R. 467, and Scott v. Hydro Electric Commission of Hamilton, (1914) 7 O.W.N. 385, also distinguished because in each of these cases the municipality had created a commission for the purpose of operating an electric plant owned by it under the authority of a statute of which the effect was to permit the council, instead of acting itself, to authorize, by by-law, commissioners to act for the corporation, the council being at perfect liberty to operate the plant through its own officers if it had deemed that course advisable, whereas in this case the Board of Police Commissioners was constituted and acted under sections 856-872 of "The Winnipeg Charter" as a body independent of the City Council, which is given by the statute no option in the matter. 2. The operations of a motor ambulance for the speedy removal to a hospital or to their homes of persons suffering from accident or sudden illness is a proper police function and a police constable employed by the Board of Police Commissioners to drive such an ambulance is acting as a policeman in doing so, and neither the City nor the Board will be liable for any negligence on his part while on such duty. Gillmor v. Salt Lake, (1907) 12 L.R.A. U.S. 537; Moss v. Augusta, (1894) 20 S.E.R. 653; Culver v. Streator, (1889) 130 Ill. 238, 6 L.R.A. 270, Gibney v. Yorkton, (1915) 31 W.L.R. 523; Givens v. City of Paris, (1893) 24 S.W.R. 974, and Winterbottom v. London Police Commissioners, 1901, 1 O.L.R. 549, 2 O.L.R. 105, followed. 3. Although the City, at the request of the Board, purchased and paid for the motor ambulance, it had not the control of it or any right to appoint or discharge or give orders to the driver of it, and therefore the City should not be held liable, under section 63A added to "The Motor Vehicle Act," R.S.M. 1913, c. 131, by 5 Geo. V, c. 41, s. 14, as "owner" of the ambulance for the consequence of any negligence of the policeman in driving it. Wynne v. Dalby, (1913) 30 O.L.R. at 72, followed. Neither could the Board be held liable as "owner" under that 5. Since the Board is created by the statute a bare administra 1919 |