SHEEP KILLED ON ItAILWAY. 153 



trucks and horses, one of which, alarmed at an approaching train, 

 swerved from the tramway through one of the open gates on to the 

 railway, and was killed by the engine. It was found that there was no 

 negligence on plaintiff's part, but on defendants' in leaving the gate 

 open ; and it was held iier Williams J., and ByJes J. (Erie J.C. diss.), 

 that the plaintiff had a right to expect ordinary care and diligence in 

 keeping the gate shut, and that the defendants were liable for the value 

 of the horse. And ^j^r Curiam, the 8 ti- 9 Vict. c. 20, s. G8, which im- 

 poses on railway com]^)anies the obligation to fence as against ailjoining 

 owners, does not apply to cases like the 2>ypsent, where adjoininy land 

 lielonycd to com})any. And 2^er Bytes J., " Suppose the defendants to 

 be owners of a meadow, in which there is a deep chalk pit, fenced round 

 by them to prevent cattle falling in, but with a gate in the fence to be 

 used only by the defendants when they should desire to remove chalk 

 from the pit. Suppose the defendants for reward to take in cattle to 

 agist in that meadow the same question arises. Are the defendants 

 under any obligation to exercise any degree of care in the use of the 

 gate ? It is clear on the authorities, that they are in the supposed case 

 bound to exercise care in the use of the gate, and are responsible if they 

 leave the gate open." 



Sheep killed hy a train. — In Besant v. The London and South Western 

 * Railway Company, the plaintiff was a farmer having land adjoining the 

 defendant's line, and feeding his sheep on turnips. For this purpose 

 he put them into a fold of which three sides were formed by hurdles, 

 whilst a quickset hedge and a small ditch belonging to the railway 

 made the fourth side. In the night the sheep got through the railway 

 hedge on to the line, and 25 of them were killed. Mr. Baron Martin, 

 in summing up, observed that by the Act of Parliament a duty was 

 cast upon the railway company of making, keeping and maintaining a 

 proper fence between the line and the adjoining fields for the words 

 were, " That the company shall at all times make and maintain suffi- 

 cient posts, rails, hedges, ditches, and mounds, or other fences, for 

 separating the land, for the accommodation of the owners and occupiers 

 of the land adjoinmg the railway, and to prevent the cattle of the 

 owners from straying thereout.'' The question in this case was 

 whether this was such a fence. If sheep strayed in search of food, 

 one would suppose they would go where there was plenty of food, and 

 not upon a barren railway line. Was there any proof of negliyence in 

 the plaintiff in not placiny hurdles to protect the sheep from the hedge, 

 instead of iising the hedge as one fence of the fold 1 If not, the other 

 defences failed, and the company would be responsible. It was the 

 duty of the company, and not of the plaintiff, to put up a sufficient 



