What is the test for a plaintiff to be held liable for walking into the path of a train?

Saskatchewan, Canada


The following excerpt is from Emery v. Canadian Pacific Railway Company, 1933 CanLII 217 (SK CA):

From these facts counsel submits that the only reasonable conclusion is that after performing his task the plaintiff deliberately moved along the track in the direction of the approaching train and when he thought it time to do so attempted to step off the track and would have done so in safety had he not carelessly placed his foot in the points and so got it caught; that had he, instead of moving to the east, crossed the track to the west of the switch points or gone straight across to take up his position north of the track, as he should have done in order to comply properly with Rule 104, he could have passed over in perfect safety, since he also admits that he could have crossed safely at a distance of from 10 to 15 feet in front of an engine moving toward him at the rate of two to three miles per hour. Counsel consequently submits that the plaintiff should be held to have been the sole author of his own misfortune, by walking into the train, as was the plaintiff in Davey v. L. & S.W. Ry. Co. (1883) 52 LJ.Q.B. 665.

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