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means necessary, in order to bring the case within this Act, that the defendant should have thrown the rubbish on the rails expressly with the view to upset the train of carriages. If the defendant designedly placed these substances, having a tendency to produce an obstruction, not caring whether they actually impeded the carriages or not, that was a case within the Act." And on one of the jury asking what was the meaning of the term "wilfully," then used in the statute, the learned judge added "he should consider the act to have been wilfully done, if the defendant intentionally placed the rubbish on the line, knowing that it was a substance likely to produce an obstruction; if, for instance, he had done so in order to throw upon the company's officers the necessary trouble of removing the rubbish." This decision may afford a safe guide to the meaning of the term wilful in this clause, 251 Greaves, Cons. Acts, 62. In the other clauses the word wilfully is now replaced by unlawfully.

On s. 250 (b) Greaves says:-"The introduction of the word at extends this clause to cases where the missile fails to strike any engine or carriage. Other words were introduced to meet cases where a person throws into or upon one carriage of a train, when he intended to injure a person being in another carriage of the same train, and similar cases. In R. v. Court, 6 Cox, 202, the prisoner was indicted for throwing a stone against a tender with intent to endanger the safety of persons on the tender, and it appeared that the stone fell on the tender but there was no person on it at the time, and it was held that the section was limited to something thrown upon an engine or carriage having some person therein, and consequently that no offence within the statute was proved; but now this case would clearly come within this clause."

In R. v. Bradford, Bell, 268, it was held that a railway not yet opened for passengers, but used only for the carriage of materials and workmen, is a railway within the statute.

In R. v. Bowray, 10 Jur. 211, 1 Russ. 1058, on an indictment for throwing a stone on a railway so as to endanger the safety of passengers, it was held that the intention to injure is not necessary, if the act was done wilfully, and its effect be to endanger the safety of the persons on the railway.

It is not necessary that the defendant should have entertained any feeling of malice against the railway company, or against any person on the train; it is quite enough to support an indictment under the statute if the act was done mischievously, and with a view to cause an obstruction of a train: R. v. Upton, 5 Cox, 298.

Two boys went upon premises of a railway company, and began playing with a heavy cart which was near the line. Having started the cart it ran down an embankment by its own impetus. One boy tried to divert its course; the other cried to him "let it go." The cart ran on without pushing until it passed through a hedge, and a fence of posts and rails, and over a ditch on to the railway; it rested so close to the railway lines as to obstruct any carriages passing upon them. The boys did not attempt to remove it: Held, that as the first act of moving the cart was a trespass, and therefore an unlawful act, and as the jury found that the natural consequence of it was that the cart ran through the hedge and so on to the railway, the boys might be properly convicted: R. v. Monaghan, 11 Cox, 608.

Indictment under s. 250 (b).

that on

at

A. B. unlawfully did throw (or cause to fall or strike against, into or upon) upon a certain carriage (engine, tender, carriage, or truck), then and there used upon a certain railway there, called a certain large piece of wood (any wood, stone, or other matter or thing) with intent thereby then and there to endanger the safety of one C. D., then and there being in (in or upon) the said carriage (engine, tender, carriage or truck): see a form in schedule one, post, form F. F., under s. 611.

CAUSING INJURY BY NEGLIGENCE.

252. Every one is guilty of an indictable offence and liable to two years' imprisonment who, by any unlawful act, or by doing negligently or omitting to do any act which it is his duty to do, causes grievous bodily injury to any other person. R. S. C. c. 162, s. 33.

Fine, s. 958.

This clause is not in the English Act. It is nearly in the same terms as s. 251, except that this last one applies only to passengers by railway endangered by the unlawful act or neglect, or omission of duty.

An injury resulting from an omission does not subject the person causing it to punishment unless such omission. be unlawful. An omission is deemed unlawful when soever it is a breach of some duty imposed by law, or gives cause to a civil action: 2nd Report Cr. L. Com. 14 May, 1846; see R. v. Instan, [1893], 1 Q. B. 450.

Mr. Starkie, one of the English Commissioners, in a separate report, objected strongly to such an enactment, and the framers of the Imperial Statutes have thought proper to leave it out.

This section uses the term "bodily injury " instead of "bodily harm" used in the next section and in s. 241, et seq. Did the drafter intend to make a distinction. between the two? Probably not.

INJURY BY FURIOUS DRIVING.

253. Every one is guilty of an indictable offence and liable to two years' imprisonment who, having the charge of any carriage or vehicle, by wanton or furious driving, or racing or other wilful misconduct, or by wilful neglect, does or causes to be done any bodily harm to any person. R. S. C. c. 162, s. 28. 24-25 V. c. 100, s. 35 (Imp.).

Indictment.

being then a coachman, and then having charge of a certain carriage and vehicle called an omnibus, unlawfully did, by the wanton and furious driving of the said carriage and vehicle by him the said

(defendant) cause certain bodily harm to be done to one J. N.

This section includes all carriages and vehicles of every description, both public and private. Wilful means voluntary: Greaves, Cons. Acts, 63.

See remarks under s. 251 as to the word "wilful," and

under s. 262 as to the words "bodily harm."

PREVENTING ANY SHIPWRECKED Person from SavING HIS LIFE. (48 amended in 1893.)

254. Every one is guilty of an indictable offence and liable to seven years' imprisonment

(a) Who prevents or impedes, or endeavours to prevent or impede any shipwrecked person in his endeavour to save his life; or

(b) Who without reasonable cause prevents or impedes, or endeavours to prevent or impede, any person in his endeavour to save the life of any shipwrecked person. R. S. C. c. 81, s. 36. 24-25 V. c. 100, s. 17 (Imp.).

on

Shipwrecked person" defined, s. 3.

Indictment.-

that before and at the time of the committing of the offence hereinafter mentioned, to wit, a certain ship was wrecked, stranded and cast on shore, and that A.B., on the day and year aforesaid, did unlawfully prevent and impede (or endeavour to prevent and impede) one C.D., a shipwrecked person then endeavouring to save his life from the said ship so wrecked, stranded, and cast on shore, in his endeavours to save his life.

LEAVING HOLES IN THE ICE, ETC., ETC., UNGUARDED.

255. Every one is guilty of an offence and liable, on summary convic tion, to a fine or imprisonment with or without hard labour (or both) who—

(a) Cuts or makes, or causes to be cut or made, any hole, opening, aperture or place, of sufficient size or area to endanger human life, through the ice on any navigable or other water open to or frequented by the public, and leaves such hole, opening, aperture or place, while it is in a state dangerous to human life, whether the same is frozen over or not, uninclosed by bushes or trees or unguarded by a guard or fence of sufficient height and strength to prevent any person from accidentally riding, driving, walking, skating or falling therein;

or

(b) Being the owner, manager or superintendent of any abandoned or unused mine or quarry or property upon or in which any excavation has been or is hereafter made, of a sufficient area and depth to endanger human life, leaves the same unguarded and uninclosed by a guard or fence of sufficient height and strength to prevent any person from accidentally riding, driving, walking or falling thereinto; or

(c) Omits within five days after conviction of any such offence to make the inclosure aforesaid or to construct around or over such exposed opening or excavation a guard or fence of such height and strength.

2. Every one whose duty it is to guard such hole, opening, aperture or place is guilty of manslaughter if any person loses his life by accidentally falling therein while the same is unguarded. R. S. C. c. 162, ss. 29, 30, 31 & 32.

This sub-section (b) provides for what would be manslaughter under s. 220, or at common law. An analogous enactment in England is contained in 50 & 51 V. c. 19.

SENDING OR TAKING AN UNSEAWORTHY SHIP TO SEA.

256. Every one is guilty of an indictable offence and liable to five years' imprisonment who

Sends, or attempts to send, or is a party to sending, a ship registered in Canada to sea, or on a voyage on any of the inland waters of Canada, or on a voyage from any port or place on the inland waters of Canada to any port or place on the inland waters of the United States, or on a voyage from any port or place on the inland waters of the United States to any port or place on the inland waters of Canada in such unseaworthy state, by reason of overloading or underloading or improper loading, or by reason of being insufficiently manned, or from any other cause, that the life of any person is likely to be endangered thereby, unless he proves that he used all reasonable means to insure her being sent to sea or on such voyage in a seaworthy state or that her going to sea or on such voyage in such unseaworthy state was, under the circumstances, reasonable and justifiable. 52 V. c. 22, s. 3.

257. Every one is guilty of an indictable offence and liable to five years' imprisonment who, being the master of a ship registered in Canada, knowingly takes such ship to sea, or on a voyage on any of the inland waters of Canada, or on a voyage from any port or place on the inland waters of Canada to any port or place on the inland waters of the United States, or on a voyage from any port or place in the United States to any port or place on the inland waters of Canada, in such unseaworthy state, by reason of overloading or underloading or improper loading, or by reason of being insufficiently manned, or from any other cause, that the life of any person is likely to be endangered thereby, unless he proves that her going to sea or on such voyage in such unseaworthy state was, under the circumstances, reasonable and justifiable. 52 V. c. 22, s. 3. 39-40 V. c. 80 (Imp.).

Fine, s. 958.

By s. 546, as amended in 1893, no prosecution is allowed for the offences under s. 256 and s. 257 without the consent of the Minister of Marine and Fisheries. This consent must precede the information or complaint before the magistrate, when prosecution begins by information or complaint.

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