5. Negligence - Res ipsa loquitur-Inspection and testing of equipment-Verdict of jury. The plaintiff claimed damages for injuries suffered when a car of the defendants, in which he was a passenger, was derailed and overturned. It appeared that an equalizing bar on one of the trucks of the car broke during the run and that one of the pieces, being out of its proper position, must have come in contact with an extra rail at the switch point, where the derailment took place. At the trial, plaintiff relied on the maxim res ipsa loquitur, and did not attempt to prove any specific negligence on defendants' part. was Held, that, in the circumstances, the plaintiff justified in taking this position and that the burden was cast upon the defendants to prove that they had exercised all the care and skill which the law imposes upon them in the conveyance of passengers, or whatever other defence they might have, and that it was necessary for them in this case to show at the trial that the breaking of the bar arose from some latent defect in which no human skill or care could either have prevented or detected, and that, as they had failed in their attempt to prove this, the plaintiff was entitled to judgment on the jury's verdict in his favor. Burke v. Manchester S. & B. Ry. Co., 22 L.T. 442; Scott v. London Dock Co., 13 L.T. 148, 3 H. & C. 596; Readhead v. Midland Ry. Co., L.R. 4 Q.B. 379; Hyman v. Nye, 6 Q.B.D. 685; Kramer v. London & Brighton Ry. Co., L.R. 5 Q.B. 411; L.R. 6 Q.B. 759; 4 Hals. 47; 21 Hals. 439; Dawson v. Manchester Ry. Co., 5 L.T. 682; Smith v. Baker, [1891] A.C. per Lord Halsbury at p. 335; McArthur v. Dominion Cartridge Co., [1905] A.C. 72, and Thatcher v. Great Western Ry. Co., 4 U.C.C.P. 543, followed. V. C.P.R. v. Chalifoux, 22 S.C.R. 721; Ferguson C.P.R., 12 O.W.R. 943, and other cases in which railway companies were held not liable for an accident caused by the breaking of a rail in very cold weather, when it was shown that the rail was of the best quality, that it had been tested before being laid and had been regularly inspected thereafter, distinguished. Defendants gave evidence to show that the bar in question had been carefully made of the best material and of strength sufficient for its purpose. But it had not been tested since it was made and it appeared that three or four similar bars had broken in the previous three or four years and that there had been no inspection of the bar during the run beyond a casual, but merely visual, inspection which would not disclose a break. The break was fresh and clean, and there was no latent defect where it occurred. Defendants did not produce the broken pieces of the bar at the trial. Held, that there was evidence to support the jury's findings, in answer to questions put to them, that the defendants had been negligent "in not having proper inspection or testing of equalizing bars" and that the breaking of the bar had probably been caused by a shock given to it when a powerful engine had been attached the previous day in an effort to push the train through a snow bank, and that, on this ground also, the verdict could not be set aside. Reference to the following cases showing the duties imposed on carriers with respect to testing and inspecting their equipment: Gaiser v. Niagara, &c., Ry. Co., 19 O.L.R. 31; Toronto Ry. Co. v. Fleming, 47 S.C.R. 612; Manser v. Eastern Counties Ry., 3 L.T. N.S. 585; Richardson v. Great Eastern Ry. Co., 1 C.P.D. 342. Pyne v. Canadian Pacific Ry. Co., No. 2... ..139 on another connecting line, the initial carrier undertaking the entire transportation, the other carrier through whose hands the goods pass in the performance of the contract is the agent of the initial carrier for the purposes of the contract and, when some of the goods are lost in the transit, the onus is upon the initial carrier to account for the loss and, if no explanation is furnished, res ipsa loquitur, and it will be presumed that the loss occurred through some act or default on the part of the initial carrier or its said agent. Henry v. C.P.R., (1884) 1 M.R. 210; Ferris v. C.N.R., (1905) 15 M.R. 134, and Randall v. C.N.R., (1915) 19 Can. Ry. Cases, 343, 25 M.R. 293, followed. Proof of the quantity delivered to the consignee by the connecting railway is furnished by the production, from the possession of the initial carrier, of a freight receipt issued by its agent, the connecting railway, showing the quantity delivered and the freight charged thereon, but the certificate of the weighmaster at the point of destination in a foreign state as to the quantity in the car is inadmissible as evidence thereof, though he may be an 6. Loss of goods in transit -Shipment to point on another connecting line Res ipsa loquitur - Evidence Statements of an agent as evidence against his principal-offcial of that state. Principal and agent. When goods are shipped by railway consigned to a point Scanlin v. C.P.R...........233 See NEGLIGENCE, 1. gence, it is the duty of the Judge to decide whether there is evidence from which the jury might reasonably and properly conclude that there was negligence. If there was not such evidence he should withdraw the case from the jury and direct a non-suit, though it could not be said that there was no evidence at all. Ryder v. Wombwell, (1868) L.R. 4 Ex. 32; Metropolitan Ry. Co. v. Jackson, (1877) 3 A.C. 193, at p. 197; Hiddle v. National, &c., Co., [1896] A.C. 372, and Dublin, &c., Ry. Co. v. Slattery, (1878) 3 A.C. 1155, followed. Above rule applied and verdict for plaintiff set aside and action dismissed with costs in a case in which the only evidence of negligence was that of the plaintiff which was contradictory in itself and opposed to that of all the other witnesses, and in which it was shown that the plaintiff herself had, immediately after the accident complained of, attributed it to another cause for which the defendant company could not be responsible. Harris v. Winnipeg Electric Ry. Co. 306 See MUNICIPALITY, 1. WAIVER OF STATUTORY REQUIREMENTS. See COMPANY, 3. King's Bench Act, Rules 934, 942, 951, 952 - Removal of statutory restriction on amount of costs. The testator, by his will, directed the sale of 1,200 acres of wild land, which stood in his wife's name, and the division of the proceeds among his sons, devised to his wife what was called the home farm, and proceeded to say, "I wish and do want that my only daughter, Edith Florence, shall inherit from her mother a share equal to that of the boys named above and the balance to be divided in equal shares between all our children then living." Held, that this language amounted to no more than a request or suggestion that the wife should deal with the property left to her in a certain way and did not impose a trust upon her. Hill v. Hill, [1897] 1 Q.B. 483; In re Hamilton, [1895] 2 Ch. 370; Johnson v. Farney, 29 O.L.R. 223, and In re Oldfield, [1904] 1 Ch. 549, followed. Comisky v. Bouring-Hanbury, [1905] A.C. 84, distinguished. It should not be concluded from the use of the word "inherit" in the above extract that the testator was devising anything out of his estate to |