HUNTING AND TRESPASSING. 



349 



it on to the railway, where they were soon afterwards 

 killed by one of the company's trains. An action was 

 brought by the plaintiff against the railway company, who 

 contended that the horses were, under the circumstances, 

 trespassers on the highway. But it was held by the Court 

 of Queen's Bench, that the plaintiff was entitled to recover 

 the value of his horses from the company, because the 

 obligation imposed on them by 5 & 6 Yict. c. 55, s. 9, to 

 keep the gates closed, was not only against cattle travelling 

 on the road but also against all cattle straying there {d). 



A very similar conclusion was arrived at in Charman v. 

 South Eastern Railway Company (e), which was an action 

 for not properly fencing the defendants' line at a level cross- 

 ing in accordance with their statutory obligation under section 

 47 of the Railway Clauses Consolidation Act (8 & 9 Vict. 

 c. 20), whereby two horses belonging to the plaintiff strayed 

 on to the line and were killed. At the trial, it appeared that 

 there were gates at the level crossing of the full width of 

 the road properly so called, but that a swing gate had been 

 placed by the defendants upon a piece of land beyond the 

 limit of the road, on the same line with the gates, for the 

 convenience of foot-passengers using the crossing, and that 

 plaintiff's horses after straying from his land arrived at the 

 gates at the level crossing, and finding them closed, turned 

 aside to the swing gate, and forcing their way through it, 

 owing to the defective condition of the posts, got on to the 

 line and were killed by a passing train. It was held that 

 there was evidence of a breach of the defendants' obligation 

 to fence in the railway from the road, and that they were 

 therefore liable. 



The provisions of the 5 & 6 Vict. c. 55, s. 9, and presum- 

 ably of the 8 & 9 Vict. c. 20, s. 47, as to making and main- 

 taining gates where a railway crosses a road on a level, do 

 not apply to a railway belonging to a private owner, and not 

 constructed under parliamentary powers, nor used for the 

 conveyance of passengers (/). 



In the preceding cases it will be observed that there was 

 an express statutory obligation to keep the gate closed 

 across the road under all circumstances ; consequently, the 

 company were guilty of committing a wrong, in omitting 



Statutory 

 obligation to 

 maiutain gatef , 



(d) Fawcett v. York and North 

 Midland Rail. Co., 16 Q. B. 610 ; 

 15 Jur., Q. B. 173; 20 L. J., Q. B. 

 222. 



(e) 21 Q. E. D. 524 ; 57 L. J., 



Gate ot 

 station left 

 open where 

 there is no 

 statutory 

 obligation. 



Q. B. 597 ; 37 W. E. 8— C. A. 



(/) Matson v. Baird, 3 App. Cas. 

 1082; 39 L. T., N. S. 304; 26 

 W. E. 835. 



