rOOTPATH ALONGSIDE RAILWAY. 151 



fact the defendants were not aware when the gates were erected that 

 there was any highway. The plaintift^'s key was lost, and his men 

 used to fasten the gate by thrusting a piece of wood through the staple. 

 There was some evidence that a boy who drove the pkiintitf's cattle 

 through the gates in the evening had left one of them open ; and it 

 was also suggested that it might have been left open by some careless 

 person using the footpath. Two of his colts strayed along the occu- 

 pation road through the open gate, and were killed by a train. Cress- 

 well J. told the jury that the defendants were perhaps not obliged to 

 substitute a key for that which the plaintiff had lost, but there was no 

 evidence of notice of the loss, or of any request to be supplied with 

 another ; and he asked them whether they thought the plaintiff had 

 been guilty of negligence, telling them if his negligence had contributed 

 to the accident they ought to find for the defendants, who had a 

 verdict. A rule for a new trial, on the ground that the question of 

 negligence on the part of the plaintiff did not arise, inasmuch as the 

 defendants were guilty of a breach of a positive duty in not carrying 

 the railway either over or under the footpath, or providing gates or 

 stiles which might be used for passengers, and also that there was a 

 breach of positive duty in not keeping the gates closed, was dis- 

 charged. 



Pollock C.B. said : " It was a question for the jury, whether the 

 (.plaintiff by his own neglect had contributed to the accident. A foot 

 passenger must seek his remedy for an obstruction of this kind in a 

 court of law, and he Ms no right to prostrate the fence, a proceeding 

 which might be productive of the most lamentable consequences, lead- 

 ing not only to the destruction of any cattle which may stray upon the 

 line of railway, but endangering the lives of passengers travelling 

 thereon, as the bodies of such animals may cause a train to run off the 

 line. Because the defendants have only partially done that which they 

 were empowered to do, it is not therefore illegal quasi ah initio, but 

 they may be compelled to complete it by mandamus:' And ]^)er Martin 

 B. : " Assuming that there was a public footway, and the gates were 

 improperly erected, the learned judge properly left the question to the 

 jury. In every case of this description the rights and obligations of 

 parties towards each other are correlative. Here the defendants deli- 

 vered a key of the gate to the plaintiff, which he accepted, aud took 

 npon himself the obligation to take care of the gate. Before any obliga- 

 tion could arise on the part of the defendants to take care of the gates, 

 there ought to have been a request from the plaintiff that they should 

 do so ; and no communication whatever appears to have been made 

 with reference to the matter" (26 L. J. Exch. 349). 



