290 TRANSACTIONS OF ROYAL SCOTTISH ARBORICULTURAL SOCIETY. 



In 1893, when delivering judgment in the Flax Store case 

 above alluded to, the Lord Chancellor said : — 



"It is now well-settled law that in order to establish a case of liability 

 against a railway company, under such circumstances it is essential for the 

 pursuers to establish negligence. The railway company having the statutory 

 power of running along the line with locomotive engines, which in the course 

 of their running are apt to discharge sparks, no liability rests upon the 

 company, merely because the sparks emitted by an engine have set fire to 

 adjoining property. But the defenders, although possessing the statutory 

 power, are undoubtedly bound to exercise it reasonably and properly, and 

 the test whether they exercise the power reasonably and properly appears to 

 me to be this. They are aware that locomotive engines running along the 

 line are apt to emit sparks. Knowing this, they are bound to use the best 

 practicable means according to the then state of knowledge, to avoid the 

 emission of sparks, which may be dangerous to adjoining property ; and 

 if they, knowing that the engines are liable thus to discharge sparks, do not 

 adopt that reasonable precaution, they are guilty of negligence, and cannot 

 defend themselves by relying upon the statutory power. About the law as 

 I have thus expressed it, I do not think there is any controversy between the 

 parties to this litigation." 



Numerous decisions have been given in the Courts under 

 the same law ; and, in view of the difficulty of proving legal 

 "negligence," it is not surprising that these decisions have 

 almost invariably been given in favour of the railway company. 

 A notable exception is the case of Twinch v. The G. W. Railway 

 Company, which was tried by Mr Justice Day at the Berks 

 Summer Assizes, on 15th June 1900. The learned judge, when 

 summing up, is reported to have said : — 



"It was perfectly clear that the damage was caused by cinders escaping 

 from the leading engine; and the question was simply, did that arise from 

 want of reasonable care on the part of the company ? They had nothing to 

 do with the practice of English or Scotch railway companies ; whether they 

 were right or wrong was immaterial; but if the French or the American 

 system was more effective, they ought unquestionably to use it. He attached 

 the utmost importance to what was done in other countries, because if 

 foreign countries did damage they had to pay for it, and so they were more 

 likely to study anything which would protect their own pockets than 

 English companies, which were worked under a certain system of protection. 

 The time occupied by the Great Western Railway in making the experiment 

 of a partially extended smoke-box, seemed to him utterly inordinate for any 

 experiment. The defendant company had not called the drivers of the two 

 on<nnes, but he thought the jury must take it, as reasonable men, that one 

 engine did answer and the other did not." 



The jury found for the plaintiff. 



