LIABILITY OF RAILWAYS. 235 



and securely to cany and convey the horses, would not arise upon such 

 a contract. It may be that, notwithstanding the terms of the contract, 

 tlie plaintiff might have alleged that it v.as the duty of the defendants 

 to have furnished proper and sufficient carriages, and that the loss 

 happened from a breach of that duty ; Ijut the plaintiif has not so de- 

 clared, but has alleged a duty which does not arise upon the contract 

 as it appeared in evidence." 



The principle thus successfidlij csiaUislied in favour of the milwaijs 

 has been confirmed by a long line of subsequent decisions. 



In ChiirpcncMe v. Tlte Lancashire and Yorlcshire Raihvay Company, 

 the plaintiff"'s drover brought 12 head of cattle to the Wigan station 

 of the above railway, to go to Bury, a distance of 1 6 miles. With the 

 aid of the company's servants they were put into a truck, and before 

 that operation was completed the plaintiff himself brought another 

 heifer, which was placed amongst them, and paid 8s. for the carriage. 

 He also got a free pass for his drover, and signed a pass-ticket, at the 

 bottom of which was this notice : 



"N.B. This ticM. is issued, sidiject io the owner undertcdciny cdl risJcs 

 of conveyance ivhcdever, as the company wilt not le responsdjle for any 

 injury or damaye, howsoever caused, occurriny to live stock of any de- 

 scription trareUiny upon the Lancashire and YorMiire Railiray, or in 

 their vehicles. " William Chippendale. 



[0/cner, or on the owners lehcdf ayrees to the cdjove termsy 



On the truck reaching the main line the cattle became alarmed, and 

 tliree escaped throuyh a space between the ctose hoardiny at the tower part 

 of the side of the trucJc, and a rad which ran round the top of the track ; 

 two of the heifers were killed, and the third much injured. The 

 plaintiff's advocate in the AVigan County Court, by whose judge the 

 case was stated, contended that the defendants were liable, not- 

 withstanding the special contract, as the truclc was defectively con- 

 structed for the purpose of conveyiny cattle, by reason of the space 

 between the top rail of the truck and the close-boarding being too 

 great. The learned judge held that the plaintiff having entered into 

 the special contract as before mentioned had no ground of action, and 

 the defendants were not liable ; but having asked their opinion on 

 the point at the request of the plaintiff's advocate, the jury found that 

 they considered the truck in question was so defectively constructed 

 as to be unfit and unsafe for the purpose of conveying cattle along the 

 line, and that they considered the plaintiff had sustained damages to 

 the amount of £21 46'. The judge directed a verdict to be entered for 

 the defendants, and the Court affirmed the judgment with costs. 



