FENCE BETWEEN RAILWAY AND HIGHWAY. 11-9 



gate to prevent the cattle grazing in the close from straying out of the 

 close, and these gates are contiguous with and form part of the plaintiiTs' 

 fence. It is S7q)jwsed that one of these gates was left open, and that 

 the horses strayed through it into the highway leading to Torksey. 

 About 100 yards from the gate of the close, is a swing-gate leading into 

 the Torksey station, which is frequently propped open during the day, 

 but closed and locked at night. On the day in question (January l.jth, 

 1853) the horses strayed into the station, and were turned out aljout 

 six o'clock in the evening. Before the gate was closed for the night 

 they got in again, when the defendants' servants accidentally locked 

 them in. Their footmarks were traced through the gate to the station- 

 yard, and thence through an opening in the fence, which had been made 

 by the defendants' servant?, by taking down the rails for the purpose of 

 carrying or carting something from or to the railway, and which sepa- 

 rates the station-yard from the line of railway, to and upon the railway, 

 where they were killed by a goods train. It seemed that the gate of 

 the close had most probably been left open by travellers along the 

 highway, and evidence was given that the gate into the station-yard was 

 frequently left open, and cattle had been seen to stray through it, and 

 that the defendants, who had kept it shut since the accident, had often 

 been warned about it. It was contended by the plaintiffs, that the 

 defendants were liable to make good the loss of the horses by reason of 

 the alleged negligence in permitting the gate of the station to remain 

 open and the defect in the fence dividing the station-yard from the line. 

 The learned judge declined to nonsuit, and put two questions to the 

 jury — first, whether they were of opinion that there had l)een negligence 

 on the part of the defendants, and that the injury of which the plaintifls 

 complained was to be attributed to their negligence ; and secondly, 

 whether the plaintiflFs had been guilty of any negligence which con- 

 tributed in any way to the accident. The jury found the first question 

 in the affirmative, and the second in the negative, and gave £35 damages. 

 The Court of Common Pleas allowed the appeal with costs: and Jcrvis C.J. 

 thus delivered the judgment of the Court: " After the finding of the 

 jury, we must assume that the cattle of the respondents without any 

 fault on their part strayed into the public road adjoining the railway, 

 and through defect of the appellants' fences got upon the railway and 

 were killed. The question is, whether upon these facts the appellants 

 are liable in this action ? We are of opinion they are not. This is 

 not the case of a railway crossing a highway upon a level, with a gate 

 on either side of the railway, but of a highway running alongside of a 

 railway. The only enactment which is applicable to such a case, is the 

 G8th section of the Railway Clauses Consolidation Act, 8 & 9 Vicf. c. 20. 



