Lord Atkinson.:- This is an appeal from a judgment of the Court of King's Bench of Quebec (Appeal Side), dated 9th March 1914, confirming the judgment of the Superior Court, sitting in review, dated 28th November 1913, whereby damages amounting to the sum of $ 12,000 were, in accordance with the verdict of the jury which tried the case, awarded to the respondent in respect of personal injuries sustained by him through the negligence of the appellants, while he was engaged in working as a brakesman shunting a freight car or waggon on the line at Princess Louise Basin at Quebec. This line and the electrical apparatus for lighting it belong to and are controlled by the Commissioners of Quebec Harbour. By S. 264 of the Canadian Railway Act, 1906, it is provided that "Every company shall provide and cause to be used on all trains modern and efficient apparatus, appliances and means — ...... (c) to securely couple and connect the cars composing the train, and to attach the engine to such train, with couplers which couple automatically by impact, and which can be uncoupled without the necessity of men going in between the ends of the cars." In obedience to this enactment the appellants have equipped most of their freight cars at each end with a certain coupling and decoupling machine called the Tower coupler. It is unnecessary to describe in detail the mechanism of these machines further than to say that the portion of each called the knuckle, designed for coupling the cars by impact, is kept close and in position by an iron pin or peg which fits into a sheath or socket in the knuckle, and that when this pin is withdrawn from its sheath the knuckle opens and the cars, there to fore coupled together, become detached from each other. These pins are each attached to one end of a lever fixed to the car. The other end or handle of the lever projects beyond the side of the car to such an extent that it can be worked so as to raise the pin by a person standing on the permanent-way, but clear of the car. The fore and aft levers of each car project beyond opposite sides of the car. The other end or handle of the lever projects beyond the side of the car to such an extent that it can be worked so as to raise the pin by a person standing on the permanent-way, but clear of the car. The fore and aft levers of each car project beyond opposite sides of the car. If that, on one end of the car projects beyond its left side, that on the other end projects beyond its right side. It was not disputed that when there is a strain on the coupling mechanism, which may happen in many ways, the pin may be nipped so tightly by the knuckle that it cannot be withdrawn by the action of the lever, and that it is only at a moment when there is what is called a "slack" between the cars that the pin does not stick, and can be readily withdrawn by the action of the lever. But it was clearly proved, and was not, their Lordships think, seriously disputed, that this sticking of the pin does not show that the coupling machine is a defective machine. Strain will admittedly cause the pin to stick however perfect the machine may be. The respondent was twenty-seven years of age at the time of the accident, was educated and intelligent. He had been about three months in the employment of the appellant company as a "spare" brackes-man, — that is, one who may be discharged in the slack season if no berth be found for him at some other place on the line. On 13th October, 1912, he had work through the night. The electric lights on the jetty were extinguished about 1-30 a.m., but the men who were at work on the railway were furnished with lamps such as brakesman use, good of their kind. About 5 o'clock in the morning of this day an engine, with fourteen or fifteen waggons, bound for three different destinations, attached, was standing on one of the sets of rails on the main line. It became necessary to divide up this train and shunt those of the cars destined for Winnipeg into one siding, those destined for Vancover into another, and those destined for Montreal into a third. The car furthest from the engine was to be shunted into the Winnipeg siding. It became necessary to divide up this train and shunt those of the cars destined for Winnipeg into one siding, those destined for Vancover into another, and those destined for Montreal into a third. The car furthest from the engine was to be shunted into the Winnipeg siding. The respondent was aware of all this and was helping in the work under the superintendance of a foreman named Ernest Tremblay. The respondent threw over the switch lever which was situated on the north side of the line of rails upon which the engine and cars were standing in order to let this foremost car pass into the Winnipeg siding, and, having done so, he recrossed the line to its south side. The engine was then pushing the car for Winnipeg up towards the points thus set, at a speed of about three miles an hour. Tremblay signalled to the engine driver to stop the train, and then (at what interval of time is not clear) ordered the respondent to uncouple this truck. This the respondent proceeded to do. He tried to do it several times with the aid of the lever, but found that the pin was fixed and the machine would not work. He then, while the train was in motion, went in between the Winnipeg waggon and the succeeding waggon to endeavour to work the lever on the opposite side of the succeeding car. This he clearly deposes to. He failed to uncouple the cars. As he walked along between the cars his foot caught in the points, he was knocked down by the succeeding car and carried about twenty-five feet over the switches, when all the cars came to a standstill. He craweed out from under the cars; Tremblay then came to his aid and found him badly injured. The only negligence on the part of the appellants relied on by the respondent in his declaration were, first, their negligence in permitting this shunting to be done in the absence of light, and secondly, their negligence in providing a defective coupling machine. But the pleadings developed; much new matter was introduced, and new issues raised upon it. The only negligence on the part of the appellants relied on by the respondent in his declaration were, first, their negligence in permitting this shunting to be done in the absence of light, and secondly, their negligence in providing a defective coupling machine. But the pleadings developed; much new matter was introduced, and new issues raised upon it. The appellants in their answer, in addition to traversing the material averments in the declaration, pleaded : (1) that the accident was solely due to the respondent's own negligence, and that they were not guilty of any fault or negligence whatever; (2) that the coupler attached to this car was a patent coupler of approved design, and was in good order; (3) that there was no necessity for the respondent to have gone in between the cars for the purpose of uncoupling them (4); that even if it were necessary for him so to do, he should have given notice of this intention, and was bound to wait till the cars had stopped before attempting to enter between them while moving and that this was a grossly negligent act on his part, forbidden by the orders of the company; (5) that if he had any difficulty in working the coupler he should have signalled to the engine-driver, as he had a right to do, to stop the cars, and should have given the signal to start again only after he had got clear of the cars; (6) that the appellants were not responsible for the want of light; and (7) that its absence was not the cause of the accident. The respondent replied to this answer by traversing its material averments, and pleading : (1) that it was necessary for him to go in between the cars to get the pin out and make the knuckle work, and that in so doing he had acted in the circumstances as all the other employees of the company act, and according to the practice followed not only on the appellants' line of railway, but on all other railways; and (2) that in doing what he did he conformed to the rules of the company, and the directions of his superior employees, namely, the yard master, John Vachon, and the foreman, Ernest Tremblay. 'On these pleadings the case went to trial. The learned judge who tried the case left seven questions to the jury. 'On these pleadings the case went to trial. The learned judge who tried the case left seven questions to the jury. The five following, with the answers to them, are alone of importance on this appeal. They run thus :- "3. Is the said accident due solely to the fault and negligence of the plaintiff, and if so, in what did such fault and negligence consist ? — No. "4. Is the said accident due solely to the fault and negligence of the defendants, their servants and employees, and if so, in what did such fault and negligence consist ? — No. "5. Is the said accident due to the common fault and negligence of the plaintiff and of the defendants, their servants or employees and if so, in what did the respective fault and negligence of each consist ? — Yes. The plaintiff was imprudent in going between the cars to uncouple them. The defendant was very much to blame for not instructing the brakesmen, as no rules were shown to the jury that had a direct bearing on a shunter's work in a yard, making up trains. Frechette, after working all day, was called out to take Tweedell's place, who was hurt running to catch the engine in the dark. Tweedell fell and injured himself. Further, the defendants should not allow the shunters to make running shunts during a dark night when there was no light, only a signal lamp of about one candle power, which was principally used for signalling. Further, the coupling apparatus was proven to be out of order, and Frechette, acting on orders from Tremblay to uncouple the car, tried to lift the pin on the other car. If there was a double lever attachment, it would not be necessary to do so. We find the defendants very negligent for not stopping the work when the lights went out. "6. Has the plaintiff suffered damage by reason of this accident, and if so, for what amount ? — $ 15,000. "7. If you replied affirmatively to question No. 5 what amount do you deduct from the damages suffered by the plaintiff? We find the defendants very negligent for not stopping the work when the lights went out. "6. Has the plaintiff suffered damage by reason of this accident, and if so, for what amount ? — $ 15,000. "7. If you replied affirmatively to question No. 5 what amount do you deduct from the damages suffered by the plaintiff? — $ 3,000." The appellants rely strongly on the answer to the 5th question as proving that the jury were misdirected and misled by the learned Judge in his charge, in as much as they appear to have based their verdict to a large extent upon what they supposed to be improper methods of managing the business of the railway adopted by the appellants. Even if this were so it was irrelevant, as these methods did not materially, or at all, contribute to the plaintiff's injury, and upon this ground, with others, the appellants contend that they are entitled at the least to have the verdict set aside and a new trial granted. But their main attack was directed against the answer of the jury to the third question. They contend that the evidence clearly establishes that the respondents' own negligence was the sole effective cause of the injury which he received; that having regard to that evidence, no reasonable man could find as the jury have, in fact, found in answer to this question; and that as it is a crucial question the verdict should be set aside and judgment be entered for them. There is no doubt that the law of Quebec differs from the law of England on the question of contributory negligence properly so called. If one takes, for example, such a plea of contributory negligence as might be framed in conformity with the judgment by Wightman, J. in Tuff v. War-man [1858] 6 C. B. (N. S.) 573, to this effect : "That the plaintiff himself so far contributed to the misfortuno by his own negligence that but for such negligence on his part the misfortune would not have happened, and the defendants could not by the exercise of ordinary care and caution upon their part have avoided the consequences of the plaintiff's negligence." Now that plea, if proved, would be a perfectly good defence in England — Radley v. London and North Western Ry. Co. 1 App. Cas. 754. It would be no defence in Quebec. Co. 1 App. Cas. 754. It would be no defence in Quebec. The Jury in Quebec, notwithstanding the proof of it, would be entitled to inflict a kind of penalty upon the plaintiff on account of his own negligence, proportioned, presumably, in their opinion to his culpability, deduct that sum from what they would have awarded to him had he been blameless, and give him a verdict for the balance : Nichols Chemical Co. of Canada v. Lefebvre (42 Can S C R 402. That is, in fact, what the jury have done in the present case. But though this difference between the laws of the two countries on this subject does exist, it is equally certain that in Quebec, as in England, a plaintiff suing for damages in respect of an injury sustained by him cannot recover if his own negligence be the, sole effective cause of that injury. In his judgment in George Mathews Co. v. Bouchard 28 Can S C R 580. Taschereau, J. said : "There is no evidence whatever that the negligence of the company, assuming negligence to be proved, caused the accident in question, and an affirmance of the condemnation against it would unquestionably be at variance with our own jurisprudence." The other members of the Court took a different view as to the existence of evidence of the defendant's negligence, but did not dispute this principle. The ground of this distinction between the two cases is this : the latter is not, in the true sense of the term, a case of contributory negligence at all. That term can only be properly applied to a case where both the parties, plaintiff and defendant, are each guilty of negligence so connected with the injury as to be a cause materially contributing to it. If the negligence of either party falls short of this it is an irrelevant matter, an incuria, no doubt, but to use Lord Cairns' words not an incuria dans locum injuriae. See Lord Bowen's judgment in Thomas v. Quartermain [1887] 18 Q.B.D. 685, and Lord Cairns' judgment in Metropolitan Ry. Co. v. Jackson [1878] 3 App. Cas., 193. (Here passages from the judgment of Lord Cairns were quoted). That was a very strong case. The carriage of the company in which Jackson, the plaintiff, was travelling got overcrowded at Gower Street; three people were standing in it. Co. v. Jackson [1878] 3 App. Cas., 193. (Here passages from the judgment of Lord Cairns were quoted). That was a very strong case. The carriage of the company in which Jackson, the plaintiff, was travelling got overcrowded at Gower Street; three people were standing in it. At Portland Road some people, from a crowded platform, opened the door of this carriage, and others tried to force their way into it. The plaintiff stood up to prevent them, the train suddenly moved on; the plaintiff to save himself from falling, put his hand upon the lintel, of the door, when a porter hastily slammed the door as the train was entering a tunnel, thereby catching the plaintiff's thumb in the door and crushing it. Yet, for the reasons stated by Lord Cairns, it was decided that the Judge at the trial should have directed a verdict for the defendant company. In reference to the right of a defendant, albeit guilty of negligence not amounting to incuria dans locum injuriae, to have a verdict directed for him where the plaintiff's negligence is the sole effective cause of the injury in respect of which he sues, the same great judge laid down the guiding principle of the English law applicable to it in a well-known passage of his judgment in the case of Dublin, Wicklow, and Wexford Ry. Go. v. Slattery [1878] 3 App. Cas. 1155, where he says : "If a railway train, which ought to whistle when passing through a station, were to pass through without whistling, and a man were, in broad daylight, and without anything, either in the structure of the line or otherwise, to obstruct his view, to cross in front of the advancing train and to be killed, I should think the judge ought to tell the jury that it was the folly and recklessness of the man, and not the carelessness of the company, which caused his death. This would be an example of what was spoken of in this House in the case of Metropolitan Ry. Co. v. Jackson (6) as an incuria, but not an incuria dans locum injurial. The jury could not be allowed to connect the carelessness in not whistling, with the accident to the man who rushed, with his eyes open, on his own destruction." The principle thus laid down has been many times applied. Co. v. Jackson (6) as an incuria, but not an incuria dans locum injurial. The jury could not be allowed to connect the carelessness in not whistling, with the accident to the man who rushed, with his eyes open, on his own destruction." The principle thus laid down has been many times applied. It was applied in the case of Davey v. London and South Western Railway Co. [1883] 12 Q.B.D. 70, and quite recently in the cases of Macleod v. Edinburgh and District Tramways Co. [1913] S. C. 624, and Grand Trunk Railway v. McAlpine [1913] A. C. 838. In each of these cases the act upon which the risk of injury attended, and from which the injury sustained resulted, was done by the person who suffered the injury. The question, therefore, which was raised and was most discussed in the case of Smith v. Baker [1891] A. C. 325, namely, whether a man voluntarily incurred a risk attending his employment, where the act or negligence by which he was injured was the act or negligence of some person other than himself, did not arise in these cases. In cases such as Smith v. Baker (11) it must be shewn (1) that the plaintiff clearly knew and appreciated the nature and character of the risk which he ran, and (2) that he voluntarily incurred it. Until both are established, the maxim Volenti non fit injuria cannot apply. If, however, a person, with full knowledge and appreciation of the risk and danger attending a certain act, voluntarily does that act, it must be assumed that he voluntarily incurred the attendant risk and danger and the maxim Volenli non fit injuria directly applies. Lord Halsbury pointed out this difference with great clearness. He said ("As I have intimated before, I do not deny that a particular consent may be inferred by a general course of conduct. Every sailor who mounts the rigging of a ship knows and appreciates the risk he is encountering. The act is his own, and he cannot be said not to consent to the thing he himself is doing. Every sailor who mounts the rigging of a ship knows and appreciates the risk he is encountering. The act is his own, and he cannot be said not to consent to the thing he himself is doing. And examples might be indefinitely multiplied where the essential cause of the risk is the act of the complainant-plaintiff himself, and where, therefore, the application of the maxim, 'Volenti non fit injuria,' is completely justified.") The first question to be decided, then, resolves itself into this : Does the evidence show that the respondent's own negligence was the sole effective cause of the injury which he sustained, that is, does it show that he, knowing the risk and danger of going in between cars in motion in order to uncouple them by means of this Tower coupler, voluntarily encountered that risk and danger, thereby sustaining the injuries he complains of? If he did so, then it must be held that there was no evidence before the jury upon which they could reasonably find as they have found in answer to question No. 3. The presence or absence of evidence sufficient in any given case, to support the finding of a jury as reasonable men is a matter upon which different minds may well come to opposite conclusions. The division of judicial opinion in the present case is proof of this. And every appellate tribunal, conscious of the great advantage enjoyed by a jury in having seen and heard the witnesses, and in having had the whole trial conducted under their observation, must feel reluctant to disturb the decision of such a tribunal. This applies in a special degree to this Board, which has to deal with the administration of justice in distant and dissimilar parts of the Empire, and has always desired to strengthen the well-deserved confidence of the local public, in their native tribunals; but if, despite this ever present desire, the Board, after careful examination of the evidence, comes to the conclusion that the verdict of the jury cannot be sustained, no course is open to it but to set that verdict aside. Any other course would amount to a judicial wrong, the punishment of a litigant for something for which he has not been proved to be answerable. Any other course would amount to a judicial wrong, the punishment of a litigant for something for which he has not been proved to be answerable. Now, since the respondent again and again admitted that he knew that in going in between freight cars while in motion to uncouple them, he endangered both his life and limbs, it could not be contended that he did not know and appreciate the risk which he ran. He was acquainted with the place, knew where the switches were and knew they were open, since he himself had opened them. If the darkness increased the risk, he must have been aware of that fact also. Accordingly the respondent's Counsel was driven to contend that, though his client knew well the nature and character of the risk he would run if he should act as he has done, he did not encounter that risk voluntarily, but, on the contrary, encountered it under the compulsion of a legal contractual obligation. Basing himself upon the supposed likeness of the case of Sword v. Cameron 1 S.S.C. (2nd Ser.) 493, discussed at length by Lord Cranworth in Bartonshill Coal Co. v. Reid 3 Macq. 266, he argued, borrowing Lord Cranworth's language, that a negligent and defective system of carrying on the operation of shunting was allowed to grow upon the appellant Railway, according to which brakesmen were only required to operate uncoupling levers from outside the waggons so long as the coupling machines worked satisfactorily, but were not only permitted but were bound by the terms of their hiring to get in between cars when in motion for the purpose of uncoupling them whenever the pin happened to stick or the coupler did not work satisfactorily — that is that the brakesmen, including the respondent, were employed to discharge their duties as such according to this defective and negligent practice which was so permitted to prevail. This, he admitted, was the way most favourable to him in which the contention could be put. It will be considered presently how far the principle of Sword v. Cameron (12) is applicable to the present case. Before proceeding further, however, it would be convenient to deal with the respondent's point as to the alleged defective-ness of the Tower coupler. This, he admitted, was the way most favourable to him in which the contention could be put. It will be considered presently how far the principle of Sword v. Cameron (12) is applicable to the present case. Before proceeding further, however, it would be convenient to deal with the respondent's point as to the alleged defective-ness of the Tower coupler. (After a consideration of the evidence as to the Tower coupler the judgment proceeded) :- The respondent himself admitted that in the best of couplers the pin may be held so tight sometimes that it will stick if there be not "slack" between the cars. He explained how this "slack" might be produced. Tremblay, his witness, proved that the Tower was the "avant dernier" patent, the Sharon the "derinier" patent, and that some of the former work was as satisfactory as the latter. In addition three or four witnesses were examined on behalf of the appellants on this point, but not on the existence of this practice. They proved that this tower coupler was a patent automatic coupler, the very best of its kind; that its ordinary life was about ten to fifteen years; that about 75 per cent. of the Canadian Pacific freight cars were equipped with it; that it was used on many other of the great Canadian railways; that the Railway Commission, whose rules, regulation, and requirements all Canadian railway companies are bound to obey and comply with, approved of it; that the Sharon patented coupler was fifty pounds heavier than the Tower had the same inside mechanism but had the additional advantage of an attachment operating underneath; that the cars of the company were increased in size so that they were able to carry a load of from fifty to sixty tons, instead of twenty to thirty as theretofore; that the company equipped these larger cars with the heavier coupler because of its greater strength and its additional attachment; and that no cars are built in Canada with the levers attached to couplers running from side to side of the car. This evidence was practically uncontradicted. Counsel for the respondent admitted, as indeed, according to a well established principle of law he was bound to admit, that the company were under no obligation whatever to their employees to equip their cars with the very latest improved coupler immediately after it was put upon the market. This evidence was practically uncontradicted. Counsel for the respondent admitted, as indeed, according to a well established principle of law he was bound to admit, that the company were under no obligation whatever to their employees to equip their cars with the very latest improved coupler immediately after it was put upon the market. Their Lordships are clearly of opinion that the evidence does not establish that the Tower coupler is a defective machine, or that the Company failed in any way in their duty to their Brakesmen to provide them with machines reasonably fit and proper for the work which those brakesmen had to do. The learned judge who presided at the trial was apparently of the same opinion. It remains to deal with the evidence bearing on the main question in the case. of the five witnesses examined on behalf of the respondent on this part of the case, two were former employees of the company, and three were existing members of the company's staff. The respondent himself gave evidence (After discussing the evidence their Lordships held that the rules prohibiting men between cars in motion was perfectly well known and they then proceeded.) The necessity of observing it was impressed upon brakesmen, and they were fully aware of the dangers attending the transgression of it. The respondent must be bound by evidence given on his behalf. Now the argument advanced by his Counsel places him in this difficulty. If the respondent contracted to serve according to the defective system alleged to have been pursued, with or without light, he has no more right to recover for injuries arising from dangers inherent in that system than would a sailor, to take Lord Halsbury's illustration, be entitled to recover damages because he fell from the rigging when, in obedience, to orders, he went aloft, or a jockey who was retained to ride in a steeplechase be entitled to recover damages because in the race he was thrown and injured, while if the defective system merely applied to acts done in the daylight or with clear and adequate artificial light, the respondent, knowing the dangers, as he admittedly did, was all the more rash and reckless in going in between the trucks at night. The case of Sword v. Cameron (12) was a very peculiar one and in their Lordships' view, bears no resemblance whatever to the present. The case of Sword v. Cameron (12) was a very peculiar one and in their Lordships' view, bears no resemblance whatever to the present. There is no proof whatever in this case that this practice of going in between moving cars was ever tolerated or approved of by the Company, or the infraction of the rule against it systematically winked at by the Company or its officers, and still less proof that the respondent was hired to act under any circumstances in violation of the rule. It was proved that the brakesmen, though directed to observe the rule, violated it occasionally at their own risk. A company such as this are not required to have every rule for the guidance of their staff printed or reduced to writing. If their employees are aware of the existence and terms of the rule, they are bound by it whether it be written or not. Negligence is a breach of duty, and their Lordships are quite unable to discover what is the particular duty owed by the appellant company to the respondent which the company has violated. They supplied their brakesmen with machines reasonably effective for the purposes required. They caused their staff to be informed that certain rules should be observed. The fact that their employees violated these rules cannot enlarge the duties which the company owed their staff, or impose new duties towards that staff upon them. The respondent has suffered very serious injuries, and is entitled to one's deepest sympathy; but on the whole case their Lordships are clearly of opinion that he is the unfortunate victim of his own rashness and recklessness and that consequently he has no legal claim against the appellant company since they have done him no legal wrong. With moral claims, if any, this Board has no concern. They further think that the answer to question No. 3 is not such as a jury could, on the evidence, have reasonably found. This appeal should therefore be allowed; the judgment appealed from overruled; the verdict found by the jury set aside; and a verdict entered for the appellants, and they will humbly advise His Majesty accordingly. The respondent must pay the costs here and below. Appeal allowed.