174- NEGLECTING TO FENCE DANGEROUS PLACES. 



highway, or even over a man lying asleep there, or the pur- 

 posely running against a carriage going on the wrong side of 

 the road." (a) Koad trustees and police commissioners are 

 liable for damage caused by heaps of rubbish or other 

 material wrongously left by them on the road. (6) In one 

 case, police commissioners pleaded no liability, having con- 

 tracted with a third party to clean the streets, and that the 

 negligence, if any, Avas his, not theirs. Upon the contract, 

 it Avas held that they retained control over the operations, 

 and were, therefore, liable ; and the question was raised 

 whether they could free themselves from liability by delegat- 

 ing this statutory duty, even if the contractor had had sole 

 control of the works. (c) In another case, where fog pre- 

 vented police commissioners from removing mud heaps, they 

 were held not liable for injury caused from their being left 

 where they were.^d) 



140. Neglecting to Fence Dangerous Places. — What is 

 sufficient fencing is a question of circumstances (e) ; but a 

 railway is bound to keep its disused line duly fenced,(/) and 

 it has been held negligence, on the part of road trustees, to 

 fail to shut up an old road.((/) Public railways may cross 

 roads if they have the statutory gates, but where a private 

 railway crossed a public road on the level, and was not shut 

 off by gates, and a horse strayed on it and Avas killed, the road 

 trustees were held liable, it being in their poAver to protect 

 themselves by refusing to proprietors of private railways 

 permission to cross their roads on the level or by imposing 



(a) Bavies v. Mann, 1842, 10 M. and W, 546. 



(b) Watson v. Scott, 1838, M'F. 146 ; Virtue v. Alloa Police Commissionerg, 

 1873, 1 K. 285. 



(c) Stephen v. Thurso Police Commissioners, 1876, 3 R. 535 ; see also I/arris v. 

 Magistrates of Leith, 1881, 8 R. 613. 



(d) Barton v. Kinninf/ Park Comviissloners, Januarj', 1892, 29 S.L.R. 329. 



(c) Greer v. Stirlingshire Road Trustees, 1882, 9 R. 1069; Morran v. Waddel, 

 1883, 11 R. 44. 



(/) Simpson V. Cal. Ry. Co., 1878, 5 R, 525. 



[g) MaclacKlan v. Road Trustees, 1827, 4 Mur. 216. 



