headway

(4.) Such company shall thereafter, before using higher CHAP. 99. freight cars than those used on its railway at the time of And clear the construction or reconstruction of or large repairs to maintained such bridge, erection, structure or tunnel, after having first thereafter. obtained the consent of the municipality, or of the owner of such bridge, erection, structure or tunnel, raise the said bridge or other erection, structure or tunnel and the approaches thereto, if necessary, so as to admit, as aforesaid, of an open and clear headway of at least seven feet over the top of the highest freight car then about to be used on the railway.

(5.) The Governor-in-Council may exempt from the operations of this section any bridge, erection, structure or tunnel which is upon any portion of any line of railway on all the cars of the trains running upon which air-brakes are used or otherwise.

Exception.

(6.) Every company shall be liable to a penalty not exceed- Penalty for noning fifty dollars per day for every day of wilful neglect, compliance. omission or refusal to obey the provisions of this section. R. S., c. 53, s. 15, (5), (6). R. A., s. 192.

run over a;

184. No company shall run its trains on any bridge when only unless such bridge is constructed and maintained with safe- trains may be guards approved by the Commissioner. This section shall bridge. not apply to any bridge already constructed, until six months after the coming into force of this Chapter. R. A., s. 193.

FENCES AND CATTLE-GUARDS.

each side of

185.-(1.) Within six months after any lands have been Fences, &c., to taken for the use of the railway the company shall, if there- be erected on unto required by the proprietors of the adjoining lands, at railway. their own costs and charges erect and maintain on each side of the railway, fences of the height and strength of an ordinary division fence, suitable gates with proper fastenings at farm crossings of the road for the use of the proprietors of the lands adjoining the railway, and also cattle-guards at all public road crossings, suitable and sufficient to prevent cattle and animals from getting on the railway.

fences, &c.

(2.) If the company omits to erect and complete as aforesaid omission or any fence or cattle-guard, or if, after it is completed, the neglect to make company neglects to maintain the same as aforesaid, and if, in consequence of such omission or neglect, any animal gets upon the railway from an adjoining place where, under the circumstances, it might properly be, then the company shall be liable to the owner of every such animal for all damages in respect to it caused by any of the company's trains or engines; and no animal allowed by law to run at large shall Responsibility be held to be improperly on a place adjoining the railway animals.

for damages to

CHAP. 99. merely for the reason that the owner or occupant of such place has not permitted it to be there. R.S., c. 53, s. 16. R. A., s. 194.

Time for construction if land is occupied.

When company is exempted from liability.

Fencing at crossings.

Gates at farm crossings to be kept.

Penalty for leaving gates open.

Company not liable in such case.

Enforcing of preceding provisions.

186. If the land through or by which the railway passes is occupied at the time of the construction of the railway opposite thereto, the company shall make such fences gates and cattle-guards as they lay their rails. R. A., s. 195'

187. After such fences, gates and guards have been duly made and completed, and while they are duly maintained, no such liability shall accrue for any such damages, unless the same are caused wilfully or negligently by the company or by its employees. R. S, c. 53, s. 16, (3.) R. A., s. 196.

188. At every public road crossing at rail level of the railway, the fence on both sides of the crossing and on both sides of the track shall be turned in to the cattle-guards, so as to allow of the safe passage of trains. R. A., s. 197.

189. The persons for whose use farm crossings are furnished, shall keep the gates at each side of the railway closed when not in use; and no person, any of whose cattle are killed by any train owing to the non-observance of this section, shall have any right of action against any company in respect to the same being so killed. R. A., s. 198.

190. Every person who wilfully leaves any such gate open without some person being at or near it to prevent animals from passing through it on to the railway, or who takes down any part of a railway fence, or turns any horse, cattle or other animal upon or within the enclosure of such railway, is liable to a penalty of twenty dollars for each offence, and is also liable to the railway company for any damage to the property of the company or for which the company is responsible, by reason of such gate being so left open, or by reason of such fence being so taken down, or by the turning upon or within the enclosure of such railway of any horse, cattle or other animal; and no person, any of whose cattle are killed by any train owing to the nonobservance of this section, shall have any right of action against any company in respect to the same being so killed. R. S., c. 53. s. 16, (4.) R. A., s. 199.

191. Whenever complaint is made to any justice of the peace that the foregoing provisions of this Chapter respecting the erection of fences, gates and guards have not been fully complied with by any company, such justice shall forthwith notify the agent or secretary of the railway company complained of, of the substance of such complaint, and if there is no resident agent or secretary shall post up notices of such complaint in some conspicuous place on the works of such company, and if within ten days after such notice or notification such company does not fully carry

out the provisions of such section to the satisfaction of CHAP. 99. such justice, then such justice may authorize any person to make all such repairs and outlays as are necessary fully to carry out the provisions of such section at the expense of such company, and in default of payment by such company of the expenses so incurred they may be sued therefor as for a private debt due by such company. R. S., c. 53, s. 15, (5.)

INSPECTION OF RAILWAY BEFORE OPENING.

Council before

opened.

192. No railway, or portion of any railway, shall be Notice to opened for the public conveyance of passengers until one Governor-inmonth after notice in writing of the intention to open the railway is same is given to the Commissioner by the company to which the railway belongs, and until ten days after notice in writing is given to the Commissioner by the company of the time when the railway or portion of railway will be, in the opinion of the company, sufficiently completed for the safe conveyance of passengers, and ready for inspection. R. S., c. 53, s. 34. R. A., s. 200.

193. If any railway or portion of a railway is opened Penalty for nonwithout such notices, the coinpany to which such railway compliance. belongs shall be liable to a penalty of two hundred dollars for every day during which the same continues open, until the said notices have been duly given and the times mentioned therein respectively have expired. R. S., c. 53, s. 35. R. A., s. 201.

inspected.

opening if report

194. The Commissioner upon receiving such notifica- Railway to be tion, shall direct the Provincial Engineer to examine the railway proposed to be opened, and all bridges, culverts, tunnels, road crossings and other works and appliances connected therewith, and also all engines and other rolling stock intended to be used thereon; and if the Pro- Postponement of vincial Engineer reports in writing to the Commissioner is unfavorable. that, in his opinion, the opening of the same would be attended with danger to the public using the same, by reason of the incompleteness of the works or permanent way, or of the insufficiency of the establishment for working such railway, together with the ground of such opinion, the Commissioner, with the sanction of the Governor-inCouncil, and so, from time to time, as often as such engineer, after further inspection thereof, reports to the like effect, may order and direct the company to which the railway belongs, to postpone such opening for any time not exceeding one month at any one time, until it appears to the Commissioner that such opening may take place without danger to the public. R. S., c. 53, s. 36. R. A., s. 202.

195. If any railway or any portion thereof is opened Penalty for contrary to such order or direction of the Commissioner, to order.

opening contrary

CHAP. 99. the company to which the railway belongs shall be liable to a penalty of two hundred dollars for every day during which the same continues open contrary to such order or direction. R. S., c. 53, s. 37. R. A., s. 203.

Order not binding without copy of report.

196. No such order shall be binding upon the company unless a copy of the report of the Provincial Engineer on which the order is founded is delivered to the company with such order. R. S., c. 53, s. 38. R. A., s. 204.

Proceedings if

part of railway

197.

INSPECTION OF RAILWAY OUT OF REPAIR.-REPAIRS.

Whenever the Commissioner receives information is out of repair. to the effect that any bridge, culvert, viaduct, tunnel or any other portion of any railway, or any engine, car or carriage used or for use on any railway, is dangerous to the public using the same, from want of repair, insufficient or erroneous construction, or from any other cause, or whenever circumstances arise which, in his opinion, render it expedient, he may direct the Provincial Engineer to exainine and inspect the railway or any portion thereof, or of the works connected therewith, or the engines and other rolling stock in use thereon, or any portion thereof, and, upon the report of the Provincial Engineer, may condemn the railway, or any portion thereof, or any of the rolling stock or other appliances used thereon, and, with the approval of the Governor-in-Council, may require any change or alteration therein or in any part thereof, or the substitution of any new bridge, culvert, viaduct or tunnel, or of any material for the said railway; and thereupon the company to which such railway belongs, or the company using, running or controlling the same, shall, after notice thereof in writing, proceed to make good or remedy the defects in the said portions of the railway, or in the locomotive, car or carriage which has been so condemned, or shall make such change, alteration or substitution as has been required by the Commissioner. R. S., c. 53, s. 39. R. A., s. 205.

Defects to be made good.

If railway is out of repair at a crossing, notice to be given.

Procedings thereafter.

198. Whenever that portion of any railway which crosses or is constructed upon or along any public road, street or other public highway at rail level is out of repair, the warden of the municipality or mayor of the city or town, having jurisdiction over such road, street or other highway, may serve a notice upon the company in the usual manner, requiring the repairs to be forthwith made; and, if the company does not forthwith make the same, such officer may transmit a copy of the notice so served to the Commissioner, and thereupon the Commissioner shall, with all possible despatch, appoint a day for an examination into the matter; and shall, by mail, give notice to such warden

or mayor and to the company of the day so fixed. R. S., c. CHAP. 99. 53, s. 46. R. A. s. 206.

proceedings

199. Upon the day so named the said portion of the Inspection and railway shall be examined by the Provincial Engineer thereupon. and any certificate under his hand shall be final on the subject so in dispute between the parties; and, if the Provincial Engineer determines that any repairs are required, he shall specify the nature thereof in his certificate, and direct the company to make the same; and the company shall thereupon, with all possible despatch, comply with the requirements of such certificate. R. S., c. 53, s. 46. R. A., s. 207.

company makes

200. In case of default, the mayor or warden of the city, Provision if the town or municipality within whose jurisdiction the said default. portion of the railway is situated, may make such repairs, and may recover all costs, expenses and outlays in the premises, by action against the company in any court of competent jurisdiction, as money paid to the company's use; but neither this section nor any proceeding had thereunder shall at all affect any liability otherwise attaching to such company in the premises. R. S., c. 53, s. 46. R. A., s. 208. 201. The Commissioner or Provincial Engineer may Regulation of limit the number of times or rate of speed of running of trains or vehicles, upon any railway or portion of railway, until such alterations or repairs as he thinks sufficient have been made, or until such time as he thinks prudent; and the company owning, running or using such railway shall forthwith comply with any such order of the Commissioner or Provincial Engineer, upon notice thereof as aforesaid; and for every failure to comply therewith such company shall be liable to a penalty of the sum of two thousand dollars. R. S., c. 53, s. 47. R. A., s. 209.

speed of trains,

&c.

Penalty.

trains may be

202. If, in the opinion of the Provincial Engineer, it is Running of dangerous for trains or vehicles to pass over any railway, prohibited in or any portion thereof, until alterations, substitutions or case of danger. repairs are made thereon, or that any particular car, carriage or locomotive should be run or used, the Provincial Engineer may forthwith forbid the running of any train or vehicle over such railway or portion of railway, or the running or using of any such car, carriage or locomotive, by delivering or causing to be delivered to the president, managing director or secretary or superintendent of the company owning, running or using such railway, or to any officer having the management or the control of the running of trains on such railway, a notice in writing to that effect, with his reasons therefor, in which he shall distinctly point out the defects or the nature of the danger to be apprehended; and for every failure to comply therewith such Penalty,