96 Vt. 170 | Vt. | 1922
When this ease was here before (94 Vt. 449, 111 Atl. 567), i't was pointed out that the action was brought on section 1053 of the Civil Code of the Province of Quebec, in which Province the accident occurred on March 13, 1913. Nearly
It was contended by the plaintiff in the first trial, also in the trial now under review, that, as to the time of bringing the action, the ease falls within the provisions of section 306, Ch. 37, R. S., an Act of the Dominion Parliament, known as the “Railway Act of Canada,” which is an act of limitation only, not one of extinguishment. In the first trial defendant contended that the Dominion statute, like that of the Province of Quebec, is one of extinguishment; but in the second trial this contention was abandoned, and the assertion made that, conceding the Dominion statute to be one of limitation only, there is no conflict between the two, the subject-matter of each being different from that of the other, and consequently each is in force and the provincial statute governs in determining the case. Both of the statutes on which such contentions were based, were put in evidence, also numerous decisions of the provincial courts of Canada and of the Privy Council of England. In this connection expert witnesses gave testimony as to the Dominion and the provincial law, but in each instance the witness based his opinion on the statutes and judicial decisions in evidence before the court.
At .the close of the evidence defendant asserted that, as the ease stood, it was for the court to determine which governed, the provincial statute of extinguishment, or the Dominion statute of limitation. The court so ruled and proceeded accordingly. No question as to the correctness of this ruling is before us.
Defendant’s motion for a directed verdict was overruled, the court holding that the case falls within the operative force of section 306 of the “Railway Act”’ by which the limitation goes only to the remedy, leaving the right of action unaffected. Defendant excepted to this ruling; also saved the same legal question by exception to the charge. The determination of the point so raised necessarily involves an inquiry whether, after the
Nor is the rule different in- the present case by reason of the testimony given'by the three experts, each basing his opinion on the statutes and judicial'decisions in evidence; for “no wit
The record before us presents an instance where the domain was covered by a provincial statute of extinguishment, ánd also by a Dominion statute of limitation, the period for the bringing of the suit, as affected by either, terminating at the same time, namely, one year after the injury occurred. Neither statute was without legal existence; but as they overlapped the Dominion statute prevails, by which statute the time of bring
Since the trial of the present case in the court below, a decision has been rendered by the Court of King’s Bench, the highest court of the Province of Quebec, in the case of McGinn v. Canadian Pac. Ry. Co., an action brought under Article 1056 of the Civil Code, by a widow whose husband, by the negligence of the railway company, received fatal injuries when riding on one of its trains in charge of live stock being carried thereon.The company pleaded prescription of one year under that Article of the Code. It was contended by the plaintiff that the limitation of two years established by section 391 (an amendment of the former section 306) 'of the “Railway Act of Canada,” applied and was paramount. It was held that the right of action was not extinguished by the delay fixed by Article 1056 of the Code; and that the limitation contained in the “Railway Act” governed.
While this decision was not and could not be put in evidence during the trial of the instant case, because not then rendered, yet, in support of our holding in review, we may properly refer thereto as a similar construction of the law, given by the highest court of the province in which the accident then under consideration, as well as the one involved in the case before us, occurred. Eastern B. & L. Ass’n v. Williamson, cited above. The same course was pursued by this Court in Blaine v. Curtis, 59 Vt.
We think it clear that the case is governed by section 306 of the “Railway Act,” as ruled by the trial court, and that the ex-' ceptions cannot be sustained.
Judgment affirmed.