CATTLE STUAYING ON RATLWAVS. 143 



lliey liad been placed, into a second field, and from that over a broken 

 gate into a third field, all three being the plaintiff's fields, and had 

 strayed through an open gate of the third field into a highway crossed 

 by the railway on a level. The railway-gate, which was placed as a 

 fence across the highway where it was so crossed by the railway, was 

 also open ; and the horses, which had strayed through this gate on to 

 the railway, were there killed by one of the company's trains. For 

 the defendants it was contended that the horses were, under the 

 circumstance, trespassers on the highway, and that the issue taken on 

 the principal plea (that the said horses were not lairfalhj in the said 

 highway at the time they so went, strayed, erred, and escaped there- 

 from, as alleged, &c.) must be found for them. Wighimaii J. directed 

 that as against the defendants, who were bound to keep the railway- 

 gate closed, the horses were lawfully on the highway ; and a verdict 

 was found for the plaintiflF. Leave was given to move to enter the 

 verdict for the defendants in case the Court should be of opinion that 

 the horses were not lawfully on the highway ; but a rule nisi for that 

 purpose was discharged by the Court of Queen's Bench. 



Patteson J. thus distinguished this case from. Sharrod v. London and 

 North Western Railway Company : " There the sheep got on the line 

 without any default on the part of the company. Here the company 

 did not keep the -gate shut." His lordship also thus distinguished it 

 from Dovaston v. Payne : " The cattle there were trespassers prima 

 facie; and it lay on the plaintiff in replevin to excuse their presence 

 in the avowant's field, and show that they were not liable to be 

 distrained. Besides, a person whose field adjoins the highway may 

 leave his field open and permit cattle to pass over it ; he cannot 

 distrain them if he has sufi'ered them to come there ; but he commits 

 no breach of duty by leaving the field open. Here there is an obliga- 

 tion cast upon the company by statute to keep the gate shut." His 

 lordship added, " I think there is no doubt in this case. . The original 

 special act of this company provided that the company should keep 

 the gates across the railway, and should keep them constantly closed. 

 That enactment, in common with others of the same kind, is altered 

 by stat. 5 & 6 Vict. c. 55, s. 9. Now it is to be observed that the 

 words here used are, that the gates sliall be such as to ' prevent cattle 

 or horses passing along the road from entering upon the railway while 

 the gates are closed;' not to 'prevent cattle lawfuUy passing,' &c. 

 In this declaration the pleader has inserted that word ^lawfully ;' and 

 there is an express issue whether the horses were lawfully on the road, 

 across which there was a gate which was left open. It is contended 

 that though there was a highway there, the horses might have been 



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