1866. DICKINSON v. LONDON AND Co. On the trial it was stated by the Plaintiff that about halfpast eight o'clock on the evening of the 9th of August, 1865, he was returning home and that he called at a public-house N. W. RAIL. between one and two hundred yards from the Defendants' railway at Euxton, that he fastened his horse by the bridle to a railing in the open yard of the public-house, although there were proper stables attached to the public-house. He remained in the public-house about two hours, and when he went to look for the horse it was gone from the place where he had fastened it; he went home without finding or making much search for it. ECA BLICK BOD It was proved that there is a common and public highway used for horses, carts and carriages leading from that public-house towards and across the Defendants' railway in Euxton; that the crossing of such highway by the railway is a level crossing, and that the railway company had set up gates across both sides of the highway at such crossing, but the evidence showed that they had no gate-keeper at that crossing. It was also proved that the gates opened outwards from the railway and that they were closed by a catch, but the Plaintiff stated that they were easy to open, and a witness said it did not require a strong pull to open them, and that they would open when a train passed and would remain open, and that he had opened one of them by pushing against it with a hand cart. When the Plaintiff went home from the public-house about halfpast ten o'clock on the night in question he arrived at the gates and found them closed. The dead body of the horse was discovered on the railway about one hundred and forty yards from the gate, and a witness proved that he observed that the horse had stood near the gate on its outer side at the crossing, and that the next day he traced the marks of the horse from the gate along the railway to the place where the animal was killed. The Plaintiff also spoke to the footmarks of the horse having been traced on the 10th August along the railway from the gate to the place where it was killed, and it was not disputed that the horse had been killed on the railway during the night by a passing engine of the Defendants. The Plaintiff's counsel first rested his case on the Railway Clauses Consolidation Act, 8 Vict. c. 20, but afterwards, finding that the Defendants' railway was completed previously to the coming into operation of that Act, on the broad ground that the Defendants were liable for want of precaution in carrying on a dangerous trade. The Defendants called no witnesses; but it was contended on their behalf that there was no proof of the horse's death having been caused by any negligence on their part, the facts proved being quite consistent with the absence of such negligence; that even if the gate had been left open and the horse, straying on the road, had passed through it, the Plaintiff had contributed to his own. loss by his gross negligence in not properly securing the horse at the public-house; that there was no evidence of the manner in which the horse got from the railing at the public-house to the railway, and it was quite possible that the horse might have been taken away from the railing by some person who opened the gate, and that the horse had so got on the railway without any negligence or default on the part of Defendants; that there was no evidence of the bridle or the railing having been broken, and that it was admitted by the Plaintiff that when he saw the bridle on the dead horse the next day it was differently buckled than when he had fastened it round the railing at the public-house. The County Court judge found in point of fact that the horse had been insecurely and negligently fastened by the Plaintiff to the railing at the public-house; that during his absence in the public-house the animal had escaped from the railing owing to such negligence and insecure fastening; that it had strayed from that place to the highway and FF VOL. I.-C. P. 1866. DICKINSON v. LONDON AND N. W. RAIL. 1866. DICKINSON v. along the highway to the crossing; that the railway gate there was not then closed but open; that the horse had strayed through the gateway on and along the railway, and N. W. RAIL. had been killed while so straying by an engine of the Defendants passing along the railway. LONDON AND Co. By the Defendants' Special Act (a Public Act), which was passed 22nd May, 1834, whereby the previous Acts relating to the railway were repealed, section 52, it is enacted as follows:-" Provided that in all cases where the railway shall cross any turnpike road or public carriage way on a level, the said company shall erect and at all times maintain a good and sufficient gate on each side of the said railway where the said turnpike road or public carriage way shall communicate with such railway, which gates shall be constantly kept shut, except at such times as wagons, carts and other carriages passing along such turnpike road or public carriage way shall have to cross the said railway, and then shall be open for the purpose only of letting such wagons, carts and other carriages pass through; and every driver or person entrusted with the care of any wagons, carts or other carriages, or with any string of wagons, carts or other carriages, shall and he is hereby directed to cause the said gates and each of them to be shut as soon as such wagons, carts or other carriages shall have passed through the same, under the penalty of 5s. for every offence." The County Court judge held in point of law, that the provisions of the Special Act above set out had been modified and altered by the subsequent general Acts, 2 & 3 Vict. c. 45, and 5 & 6 Vict. c. 55, s. 9, and considered that the death of the horse had been caused by the Defendants' nonperformance of the statutory obligation imposed on them to keep the gates constantly closed and shut, except when it was necessary to open them, and, on the authority of Fawcett v. The York and North Midland Railway Company (a), gave a verdict for the Plaintiff. (a) 16 Q. B. 610. No counsel appeared for the Defendants, who were the Appellants. 1866. DICKINSON บ. LONDON AND Co. C. H. Hopwood for the Respondent.--The verdict was N. W. RAIL. right. In Fawcett v. The York and North Midland Railway Company (a), the railway crossed a highway on a level ; and there were gates across each end of the road where it crossed the line of railway. The Plaintiff's horses strayed from his field into the highway through the gates which were open to the railway, and were in consequence there killed by a train; and it was held, that by stat. 5 & 6 Vict. c. 55, s. 9, an obligation was imposed on the company to keep the gates closed as well against stray cattle on the road as against cattle travelling thereon, and that the Plaintiff was entitled to recover the value of the horses from the company. The present is not distinguishable from that case. [Willes, J. That case is in your favour. Dovaston v. Payne (b) shows that the avowant for damage feasant is bound to fence against cattle lawfully passing along the highway; but Fawcett v. The York and North Midland Railway Company (a) shows that stat. 5 & 6 Vict. c. 55, s. 9, has a wider operation.] In The Manchester, Sheffield and Lincolnshire Railway Company, app., Wallis, resp. (c), the question was as to the obligation of the railway company, under 8 & 9 Vict. c. 20, s. 68, to fence against the owners and occupiers of lands adjoining; and Jervis, C. J. (p. 223), distinguishes it from the case of a railway crossing a highway upon a level, and throughout the authority of Fawcett v. The York and North Midland Railway Company (a) is recognized. On the other side, Ellis v. The London and South Western Railway Company (d) may be relied on. There it was held a question for the jury whether the Plaintiff by his own negligence had contributed to the accident. But in that case the railway crossed an occupation way on a level, and it has no analogy to the present. (a) 16 Q. B. 610. (c) 14 C. B. 213. (b) 2 H. Bl. 527. 1866. DICKINSON V. LONDON AND Co. WILLES, J. We are called on to pronounce an opinion, without hearing the Appellants, whether the County Court judge was right, and we were desirous of seeing whether N. W. RAIL. there was any substantial ground for the appeal. The County Court judge was judge both of fact and law, and it is to be taken that the facts are according to his finding. The accident was entirely caused by the statutory misconduct of the Defendants; and the case of Fawcett v. The York and North Midland Railway Company (a) is in point. Therefore, as the learned judge followed the authority of that case, his decision must be affirmed with costs. KEATING and SMITH, JJ., concurred. Appeal dismissed with costs. (a) 16 Q. B. 610. |