plaintiff was lawfully using the street, being seated in a buggy drawn by a horse. The animal became frightened at the caboose and upset the buggy; the plaintiff was pitched out, the horse ran away and was hurt, and the buggy damaged. By an order of the Board of Railway Commissioners for Canada, dated the 23rd September, 1908, the defendants obtained leave to construct a line across the street referred to, upon condition of their filling in a dip so as to make the street at that point level with their main line. In September, 1909, when the plaintiff was injured, the work of filling in had not been completed; there was a space along the south side, about 9 feet wide, which had not been filled in; the remaining portion had been filled in to the height of about 3 feet; the buggy ran over the edge of this 3-foot fill and upset:

Held, on the evidence, that a portion of the caboose was left standing in the street for more than 5 minutes, contrary to sec. 279 of the Dominion Railway Act, and by reason of that, and also by reason of the drop in the road, the injury was caused, and both causes were the result of the negligence of the defendants.

Held, also, that there was no contributory negligence on the part of the plaintiff.

Held, therefore, that, as the defendants' user of the highway was unreasonable and unlawful, and as they had not complied with the order of the Board, they were liable in damages for the injury to the plaintiff's person and property.

Harris v. Mobbs, 3 Ex. D. 268, Wilkins v. Day, 12 Q. B. D. 10, and Kelly v. Township of Whitchurch, 11 O. L. R. 155, followed.

Action for damages for personal injuries and injury to the plaintiff's property.

R. W. Shannon, for the plaintiff.

A. M. McIntyre, for the defendants.

LAMONT, J..—The plaintiff, a physician, suffered damage by reason of his horse becoming frightened at a caboose belonging to the defendants and upsetting the buggy in which the plaintiff was riding. The plaintiff was pitched out, and the horse ran away. The defendants' caboose, which was painted a very bright red, was standing on the track of the defendants' Goose Lake line at Saskatoon, where the said track curves across Spadina crescent. About onehalf the length of the caboose extended into the street. The plaintiff was lawfully using the street when the accident occurred.

By an order of the Board of Railway Commissioners for Canada, dated the 23rd September, 1908, the defendants obtained leave to construct a line of railway across Spadina crescent in the city of Saskatoon, subject to and upon the terms and conditions following, namely: (3) That the railway company fill in the dip between its main line and the Goose Lake branch at Spadina crescent in the said city so as to make the road at that point level with the track of the applicant company." Before the construction of the defendants' railway, Spadina crescent was practically a level.

street, 66 feet wide. The defendants' main line was some 3 feet above the level, and the condition upon which the defendants obtained permission to construct their Goose Lake line across Spadina crescent was that they would raise the road between these two crossings to the level of their main line. In September, 1909, when the plaintiff received the injuries complained of, the work of filling in this road had not been completed, although it had been started the spring previous. I find that it was not filled clear across to the south side of the street, but that there was a space along the south side of the street, about 9 feet wide, which had not been filled in. The remaining portion of the street had been filled in to the height of about 3 feet, at least that part of it which was the scene of the accident. The plaintiff was driving along the crescent eastward, and, when his horse shied away from the defendants' caboose, it ran the buggy over the edge of this 3-foot fill and upset.

In these circumstances, are the defendants responsible for the damage sustained?

Section 279 of the Railway Act provides as follows: "279. Whenever any railway crosses any highway at rail level, the company shall not, nor shall its officers, wilfully permit any engine, tender, or car, or any portion thereof, to stand on any part of such highway for a longer period than 5 minutes at one time, or, in shunting, to obstruct public traffic for a longer period than 5 minutes at one time, or, in the opinion of the Board, unnecessarily interfere therewith."

When the plaintiff was going east, about an hour before the accident occurred, the caboose was standing with half its length on the highway, and with no engine attached. When he returned an hour later, at the time of the accident, which was about 3 p.m., the caboose was standing in about the same place and with no engine attached. The defendants' brakesman testified that he had orders to go north at 3 p.m., and some time before that he went out and drew in the cars on the Goose Lake line until the caboose was clear of the crossing planks, and, he thought, clear of the street.

I find, on this evidence, that a portion of the caboose was left on the street for more than 5 minutes. The defendants, in leaving a portion of their car on the highway for a longer period than 5 minutes, acted contrary to the statute, and such user of the street by them was unreasonable and unlawful.

In Harris v. Mobbs, 3 Ex. D. 268, a house van and a steam plough attached thereto were left by the defendant, for the night, on the grassy side of a highway. They were left 4 or 5 feet away from the metalled part of the road. During the evening the plaintiff's testator drove his mare in a cart along the metalled road. Passing the van, she shied at it, kicked, and galloped kicking 140 yards, then got her leg over the shaft, fell, and kicked her driver, from the effects of which he died. It was held that the defendant's user of the highway was unauthorised and unreasonable, and that he was liable in damages for the loss sustained. In giving judgment, Denman, J., said: "But I think that it follows from cases which have been decided that if there be an act done upon any part of a highway which is not a part of a reasonable user of it, and which has the effect of endangering its use to others, and damage results from such act in the course of a lawful user of the highway, an action will lie for such damage."

In Wilkins v. Day, 12 Q. B. D. 110, the defendant's servants left a roller on the greensward at the roadside, intending it to remain there until it should suit the defendant to draw it away. The plaintiff's wife drove past the spot, and her pony shied at the roller, overturned the carriage, and caused her death. It was held that the accident was caused by unreasonable user by the defendant of the highway, and that the plaintiff was, therefore, entitled to judgment. Grove, J., in giving judgment, said: "Rex v. Cross, Rex v. Jones, and Harris v. Mobbs are distinct authorities to shew that all the Queen's subjects are entitled to the free and unobstructed user of the highway, and that an action will lie for an injury resulting from an occupation of a part of the highway amounting to an obstruction and prevention of its free user by the public to an extent which is unreasonable." And further on he said: "The defendant was not using the highway for any, lawful purpose. He was making it a standing-ground for his machine, to suit his own purposes. The accident seems to me to have been occasioned by an unauthorised obstruction of that which was a part of the highway, and which obstruction made the highway less safe for user by the public.”

The same principle was laid down in the case of Kelly v. Township of Whitchurch, 11 O. L. R. 155, the headnote of which case is as follows: "On the side of a road allowance in front of a saw mill large quantities of logs, bark,

and rubbish were allowed to be piled and to be left there. The plaintiffs were driving with their horse and buggy along the allowance; while passing the place in question, the horse became frightened and swerved from the beaten track in the direction of the pile, and, in attempting to turn back again to the road, the front wheel of the buggy came into contact with a log lying about 2 or 3 feet from the travelled way, whereby the buggy was overturned, and the plaintiffs thrown out and injured:-Held, that the defendants were liable therefor."

In the present case, two causes contributed to the damage suffered by the plaintiff, the shying of his horse at the defendants' car and the drop of 3 feet from the filled-in part of the road to the old level, causing the buggy to upset. Both causes, I find, were the result of the negligence of the defendant company. I find there was no contributory negligence on the part of the plaintiff, and he is, therefore, in my opinion, entitled to recover. The damages I allow as follow:

There will be judgment for the plaintiff for $259.60 and

costs.

Principal and Agent Agent's Commission on Exchange of Properties-Misrepresentations by Agent-Revocation of

Authority Justification fected by Principals Agent.

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Subsequent Exchange EfRemuneration for Services of

The plaintiffs, as agents of the defendant, effected an exchange of the defendant's hotel property for certain Manitoba lands belonging to one G. To induce the defendant to sign a contract, they misrepresented the condition and value of the Manitoba lands: when the defendant ascertained the true condition and value, she declared the contract at an end, and revoked the plaintiffs' authority. Afterwards she entered into negotiations with G. and made an arrangement with him by which he acquired the hotel property in exchange for property satisfactory to her:

eld, upon the evidence, that the misconduct of the plaintiffs was of such a character as to disentitle them to commission for their services, and to justify the defendant in revoking their authority and refusing to carry out the contract: that the subsequent exchange was not brought about by the plaintiffs, nor made with the object of depriving them of their commission; and they were, therefore, not entitled to a commission or remuneration for their services.

Action by agents for a commission on an exchange of properties.

Avery Casey, for the plaintiffs.

H. Y. McDonald, for the defendant.

JOHNSTONE, J.-I find as follows:

The plaintiffs, as agents of the defendant, effected an exchange of the hotel property mentioned in the pleadings to one Gabb for certain lands in the province of Manitoba and the payment of $5,500 cash. The plaintiff Schubert effected this exchange, and in doing so was guilty of misrepresentation which induced the defendant to enter into a written contract by which she agreed to sell or exchange, binding herself, after the lapse of 3 days allowed for inspection, to carry out the arrangement-time, in my belief, grossly insufficient for the purpose. Schubert represented to the de