Lord Wright.-

The appellant in this case was plaintiff in the action. He is a farmer living at Rossdale, about 15 miles north of the City of Winnipeg, in the Province of Manitoba, and his claim is that he suffered damage by the respondents' negligence and breach of duty. The respondents are a company incorporated by Special Act of the Legislature of Manitoba, Statutes of Manitoba, 1900, c. 78, as amended by Statutes of Manitoba 1904, c. 90, and as affected by Manitoba Railway Act of 1913, c. 168. The respondents' line ran from Winnipeg northwards to Selkirk, about 19 miles in distance, and was laid on the west side of the highway between these points and actually along the highway, but in a distinct portion, separated by a wide ditch from the gravelled roadway ordinarily used by vehicles and foot passengers : the ditch and railway were traversed at intervals by crossings from the roadway to the places to the west. Power so to lay the track along the highway was given by the Act of 1900, and in particular S. 13 of that Act provided (though in fact this provision was not observed in the locus in quo) that as far as practicable the railway should be laid as nearly flush as possible with the street or highway along which it is laid so as to offer the least possible impediment to the ordinary traffic of the streets and highways consistent with the proper working of the railway. S. 24 provided for the making of agreements by the respondents with the rural municipalities through which the railway passed. Such agreements were scheduled to and confirmed by the Act of 1904. These agreements, which, while varying in details, granted to the respondents on certain conditions the privilege or franchise of laying their lines and erecting poles, etc., along and on the highway, expressly provided inter alia that all cars and trains should have the right of way on the tracks and highways, and any vehicles, horsemen or foot passengers should, on the approach of any car, give the car right of way. The agreements also contained a term that all cars running after dark should be provided with signal lights to be conspicuously displayed thereon.

With these agreements there is to be considered S. 38, Railways Act, which provides that no person other than those connected with or employed by the railway company, shall walk along the track except where the same is laid across or along a highway, and not even then if the track be laid on a separate and distinct part of such highway, and it be so expressed or understood between the company and the Municipal Council in whose territory such highway is comprised. So far from there being in the present case any such matter expressed or understood (whatever may be the meaning of that latter term), the language of the agreements just quoted shows that the respondents were to have no exclusive user of their track along the highway, but were merely to have a preferential right of way on the approach of a car. S. 40 of the same Act provides that every railway company shall at all times provide adequate equipment and motive power for the efficient working of the railway, subject to the directions of the Public Utility Commissioner, whose functions do not appear to have been invoked in regard to this railway, so that they are irrelevant in this dispute.

The appellant sustained the injuries complained of while returning home from Winnipeg along the Selkirk Road on a sleigh drawn by a pair of horses : the casualty occurred about 7 p. m., about 12 miles north of Winnipeg. The horses, while proceeding along the gravelled roadway, took fright at the flapping canvas of a passing truck, swerved to the left across the respondents' track by way of a crossing, and galloped on to the field beyond. The appellant pulled them with his right rein, the left rein having slipped from his hand, back on to the crossing, but they were still out of control and went at full gallop down the rail track for about half a mile, when the outfit was