Ontario Court of Appeal, Moss C.J.O., Osler, MacLennan , Garrow and MacLaren JJ. A., 12 April 1905
(On appeal from judgment of Ontario High Court, supra p. 134)
A railway passenger holding a second-class ticket is entitled to reasonable accomodation of the kind usually furnished to passengers of that class and cannot be compelled to travel in a smoking car.Judgment of Britton, J., affirmed, OSLER, and Garrow, JJ.A., dissenting as to the conclusions of fact.
APPEAL by the defendants from the judgment at the trial.
The plaintiff, who was the wife of an Indian of the Mississ- auga Band, residing at Hagersville, brought the action to establish an alleged right to travel over the defendants' line of railway at half fare under the terms of an agreement entered into between the Indians and the Great Western Railway Company, predecessors in title of the defendants.
The plaintiff had been in the habit of travelling over the defendants' line of railway between Hamilton and Hagersville and the defendants had for a long time sold to Indians first- class tickets at one-half fare. A short time before the occurrence in question, however, the defendants changed their practice in this respect and began to issue to Indians special tickets called "Indian tickets," which were sold at half of the first-class fare but purported on their face to be second-class tickets, half the first-class fare not being the same, however, as second-class fare.
On the 18th of May, 1903, the plaintiff purchased one of these tickets from Hamilton to Hagersville, and, as she had been accustomed to do, went into a first-class car. The con- ductor pointed out to her that the ticket was a second-class ticket, and said that she could not remain in the first-class car unless she paid the difference between the second-class fare and the first-class fare, and he insisted that if she would not do this she must travel in what he said was a second-class car.
After some discussion the plaintiff refused either to pay the increased fare or to enter the car in question, which was, she said, a smoking car, and she was compelled to leave the train at Rymal.
The action was tried before Britton, J., and a jury. The plaintiff's evidence was that she had asked for an "Indian ticket" and that she had not been told of the change in the practice and did not notice that the ticket was marked "second- class." Certain questions were submitted to the jury and the effect of their findings was that even if the plaintiff were only a second-class passenger the car to which she was asked to go was not sufficient for her accommodation, on account of its being a smoking car, and they assessed the damages at $10. The learned Judge gave judgment, on the 3rd of June, 1904, holding that the alleged agreement between the Indians and the Great Western Railway Company was not made out and that the plaintiff had no right to travel as a first-class passenger at half fare. There was no appeal as to this branch of the case. On the other branch of the case the learned Judge held that the question of sufficient accommodation was one of fact and that upon the whole evidence and the answers of the jury the plaintiff was entitled to judgment and he accordingly gave judgment in her favour for the damages assessed and for costs on the High Court scale: see 3 O.W.R. 705.
The appeal was argued before MOSS, C.J.O., OSLER, MAC- LENNAN, GARROW, and MACLAREN, JJ.A., on the 24th and 25th of January, 1905.
W. R. Riddell, K.C. for the appellants. The main branch of the case has been disposed of in the defendants favour and the question now involved depends upon the construction of sec. 246 of the Railway Act, 51 Vict. ch. 29 (D.). It provides that sufficient accommodation shall be furnished for the trans- portation of passengers. This section is taken from a New York statute and the meaning of it is explained in Wibert v. New York & Erie R.W. Co. (1855), 12 N.Y. 245; and Bissell v. New York Central R.W. Co. (1862), 25 N.Y. 442, at p. 452. It does not carry the duty any further than at common law except in the direction of providing carrying capacity. At common law a carrier was not bound to provide space. He was bound only to give equal facilities for those desiring to use such space and means as were available. The statute makes it
necessary for the railway company to have space available for all passengers who wish to use the trains but it does not impose any liability as to the nature of the accommodation to be furnished. There is therefore, it is submitted, no liability under the statute in this case, even if the car in question is held to be a smoking car: Chesapeake, etc. R. W. Co. v. Wells (1887), 4 S. W. Rep. 5. Nor is there any liability at common law. The sole duty at common law is to carry safely but not necessarily in special comfort: Hutchinson, 2nd. ed. secs. 495 to 505; Browne on Carriers, ch. 11, p. 366; Chitty on Contracts, 14th ed., p. 395; Chitty on Carriers, Am. ed., pp. 338 to 341; Pennsyl- vania R. W. Co. v. Roy (1880), 102 U.S. 451, at p. 457; Butler v. Manchester, Sheffield and Lincolnshire R. W. Co. (1888), 21 Q.B.D. 207; Readhead v. Midland R. W. Co. (1869), L.R. 4 Q.B. 379. In many of the States a special duty is imposed on railways as to the kind of cars to be provided for the different classes of passengers, and the American cases must therefore be read with caution. In the absence of special provisions the passenger's right at the highest is to ask for accommodation of the character generally used for passengers of the class in question: Schouler on Carriers, 3rd ed., secs. 627, 8; Hutchinson, 2nd ed., secs. 542, 3; 4 Elliott on Railroads, secs. 1585 to 1587. The evidence is clear that although smoking was going on in part of the car in question, it was, in fact, a second-class car and quite fit for use by passengers. There is nothing to justify the view taken by the learned Judge in the Court below, that some notice should have been given by the defendants that they did not intend to issue to Indians first-class tickets at half fare. Each ticket sold evidenced a specific contract and the plaintiff was bound by the terms of the contract she entered into. Having a second-class ticket, she had no right to travel in a first-class car. Dyson v. London and North- Western R. W. Co. (1881), 7 Q.B.D. 32, at p. 36: Gillingham v. Walker (1881), 44 L.T.N.S. 715; Bentham v. Hoyle (1878), 3 Q.B.D. 289. A question of the sufficiency of accommodation is not one which should be left to the decision of a jury. It would be impossible for railway companies to know up to what standard they must bring the cars used by them in order to accord with the views
and fancies of the jury before whom a complaint may be brought for consideration.
A. G. Chisholm, for the respondent. The question involved in the appeal is really a very simple one and it is not necessary to deal in detail with the very elaborate argument on behalf of the appellants. The statute is plain in its terms. Sufficient accommodation must be furnished, and that certainly means that the railway company are bound to use reasonable care and diligence in providing for the safety and comfort of the passen- gers, and it is a question for the jury whether such care and diligence were used or not. It is plain that on the evidence the jury was entitled to come to the conclusion that the car into which the plaintiff was asked to go was a smoking car. It has been held in Blain v. Canadian Pacific R. W. Co. (1903), 5 O.L.R. 334, that a railway company are bound to take reason- able means to prevent one passenger from assaulting another and there is really in principle no difference between an actual assault and the puffing of tobacco smoke in the face of a fellow passenger. In view too of the long continued practice to issue first-class tickets to Indians at half fare, there should have been some special warning given to the plaintiff: Lake Shore and Michigan Southern R.W. Co. v. Greenwood (1875), 79 Pa. St. 373; Richardson v. Rowntree, [1894] A.C. 217. The plain- tiff did not pay second-class fare and did not know that she had purchased a second-class ticket, and she is entitled to damages for the annoyance and humiliation of being wrongfully forced to leave the train.
Riddell; in reply.
April 12, MOSS, C.J.O.:--I am of opinion that the judgment entered for the plaintiff should not be disturbed.
In coming to this conclusion I deal with the case as it was dealt with below, upon its own facts.
The plaintiff had frequently travelled upon the defendants' train between Hagersville and Hamilton and vice versâ as the holder of an Indian ticket occupying a seat in the first-class carriage even when the train was composed, as it was on the occasion in question, of two carriages, one a first-class carriage and the other the carriage in respect of which the dispute has
now arisen. Until the occasion in question she had always oc- cupied a seat in the first-class carriage and had never been denied the accommodation. Upon the weight of evidence the other carriage was to all outward appearance nothing more than a smoking car. There was nothing to indicate that it was a car for the accommodation of second-class passengers. The conductor testified that the words "second-class" were painted on the outside but in this he is contradicted by the brakesman and the plaintiff's husband, who made a careful examination of the carriage. Inside the word " smoking " is painted on one end, if not on both ends, but there is a small square or card of paper posted over the door of the smaller compart- ment with the words " no smoking" printed with a pen and ink. The testimony shows that every part of the carriage was on occasions occupied and used by smokers of tobacco. The conductor says he only checked smoking in the smaller con- partment when women were there, and admits that at times it was an offensive carriage by reason of tobacco smoke. The plaintiff says that on the occasion in question when she alighted on the platform at Rymal she saw a number of per- sons at the windows smoking with their pipes in their mouths. The jury found that the carriage was in fact a smoking car, and it was open to them to so find upon the evidence.
Upon the findings and the evidence it should, I think, be taken to be established, (1) that the carriage into which the con- ductor told the defendant to go bore to all outward appearance the semblance of a smoking car, and nothing else; (2) that the plaintiff believed in good faith that it was a smoking car and nothing else; (3) that there was no other carriage provided as part of the train for the accommodation of second-class passen- gers; (4) that the plaintiff was told by the conductor that she must pay the full first-class passenger fare or go into " the next car," meaning the carriage in question, or get off; (5) that the conductor was aware that the defendant believed the carriage to be a smoking car and nothing else, but he did not inform her to the contrary or give her any reason to think otherwise; (6) that a smoking car used as such is not sufficient accommodation for the transportation of second-class passengers.
Upon these conclusions it follows that upon the occasion in question the defendants did not furnish sufficient accommodation for the plaintiff as a second-class passenger. I see nothing im- proper or fraught with the dire consequences suggested by counsel for the defendants in the finding of the jury that as a smoking car the carriage in question was not sufficient accom- modation for second-class passengers. The light in which Parliament regards the practice of smoking tobacco in rail- way carriages is found in sec. 214, sub-sec. (e) of the Rail- way Act which authorizes railway company to make by- laws, rules or regulations for "prohibiting the smoking of to- bacco and the commission of any other nuisance in or upon such carriages." Even in the absence of rules or regulations no person travelling in a first-class carriage would be per- mitted to smoke in the midst of the other passengers. He would be obliged to conform to the ordinary usages and de- cencies. And surely there can be no license to a person to enter a car filled perhaps with women and children, and because they are travelling on second-class instead of first- class tickets and in a second-class carriage, subject them to the nuisance caused by tobacco smoke which would not be tolerat- ed in the car he came from. There is no evidence in this case that it is the usage to allow smoking among the passengers in a second-class carriage.
If, as the defendants contended, there was a small compart- ment of the carriage in question not devoted to smoking, the plaintiff was not aware of it. As before mentioned there was nothing on the outside to indicate that it was a second- class passenger carriage, and all the indications the plaintiff observed pointed to its being a smoking car. I think it was the conductor's duty, seeing, as he must have seen, that the plaintiff was under that impression, to have told her of the compartment. The duty is to "furnish" sufficient accommoda- tion, and I cannot think that duty was performed in this instance. To " furnish " must include giving or bringing to the notice of, those for whom the accommodation is provided, some intelli- gible direction to where it is. The plaintiff was allowed to con- tinue under the belief that the only accommodation offered her was a seat in a smoking car, and in the view I take of the facts
and findings this was not furnishing her with sufficient accommo- dation.
The appeal should be dismissed with costs.
GARROW, J.A.:--The chief question, namely, whether the Indians had a right by contract for valuable consideration to a reduced rate over the defendants' railway was decided in the defendants' favour, and there is no appeal as to that.
The other question upon which the plaintiff succeeded depends upon the contract created by the ticket which the plaintiff pur- chased from the defendants, and on which she was riding when, as she says, she was removed from the car, and the only question which, in my opinion, we are called upon to determine is whether there was evidence from which the jury could reasonably have drawn the conclusions expressed in their answers.
The first question was apparently misunderstood by the jury. It reads: "If the plaintiff' had a right to travel on the train from Hamilton to Hagarsville on the 18th of May, 1903, as a a first-class passenger what damages, if any, is the plaintiff entitled to by reason of being compelled to leave the train at Rymal ?" And they answered: "Yes, she was entitled, and should get ten dollars damages." All that was left to them, apparently, was the question of damages, on the assumption that she was a first-class passenger. The second question is: " If the plaintiff was only a second-class passenger did the car to which the plaintiff was directed furnish accommodation reasonably sufficient for the transportation of the plaintiff as a passenger?" To which they answered " No." The third: "If not, in what respect was it insufficient in accommodation for the transportation of the plaintiff on the day in question ?" To which they answered: " On account of it being a smoking car." And the fourth and final question is as to what, if any, damages she is entitled to on the finding that she was only a second-class passenger, and the car insufficient, and they replied: " That she get ten dollars."
Section 246 of the Railway Act provides that all regular trains shall furnish sufficient accommodation for the transporta- tion of passengers; that such passengers shall be transported on the due payment of the fare lawfully payable therefor, and
that every person aggrieved by any neglect or refusal in the premises shall have an action against the company.
There is, therefore, clearly a right of action in the plaintiff if on the occasion in question she was not supplied with suffi- cient accommodation for which she had paid the fare lawfully payable.
Prior to the year 1900 the defendants had been accustomed to sell to the plaintiff and other Indians tickets at reduced rates and permit them to ride in the first-class cars, but on the 1st of February, 1900, a new regulation was, apparently, adopted, authorizing the sale by the defendants' agents of tickets " to bonâ fide Indians only for second-class continuous passage only, at one-half ordinary one way first-class fare, for one way tickets."
The plaintiff applied for and obtained at half-fare, one of these " Indian " tickets, as they are called, to which as the wife of an Indian she, although a white woman, was entitled.
The ticket on its face expresses that it is an " Indian ticket," and to be used only in riding in a second-class car. Notwith- standing this the plaintiff took a seat in the first-class car, and refused to leave it or to pay the additional fare, and insisted on her right to remain there. The conductor told her that she was only entitled to second-class accommodation, and that the second-class car was the one next ahead, into which he asked her to go, but she refused and finally got off the train, no doubt under compulsion, as one of the three alternatives offered her by the conductor, to pay first-class fare, to go into the second- class car, or to get off, but without any actual force having been applied.
There were two passenger cars, one first-class and the other second-class. The second-class car had two compartments, one of which, the largest, was used as a smoker, but in the other smoking was prohibited by a notice posted up on the door, and there is absolutely no evidence or reasonable evidence that the plaintiff could not have ridden in this smaller compartment in reasonable and sufficient comfort and safety.
The conductor apparently acted with great consideration. He was clearly only desirous of doing his duty to his employers. He allowed plenty of time for consideration. The only thing which he omitted to do was to point out that the second-class
car had two compartments, although I think in the plaintiff's state of mind this would probably have made no difference.
This omission by the conductor, however, is not suffi- cient to render the defendants liable. They had performed their contract by placing a second-class car there ready to receive the plaintiff. If she had entered it instead of the first-class car which her printed ticket told her was not the right car, she would have found the two compartments, the smaller one without any smokers, and with the prohi- bition notice on the door. It is said she had no notice of the change of practice, and that she had a right to assume its con- tinuance until she received some notice.
Her sole rights depend upon the contract and the statute. The parties are here standing on strict legal rights, and there is no authority for the statement that she was entitled to notice, as a matter of right.
But even if it could be held otherwise she had explicit notice from the conductor, and at least after that had no right, to remain in the first-class car unless upon payment of the law- ful fare for that class of accommodation, and was subject to removal to the proper car, or if she declined, as she did, then off the train entirely.
I think there was nothing for the jury to pass upon, and that the action should have been wholly dismissed with costs.
OSLER, J.A.:--I agree with the judgment of my brother Garrow.
MACLENNAN, and MACLAREN, JJ.A., concurred with MOSS, C.J.O.
R.S.C.