1858.

Jan. 29.

1858.

Jan. 26.

[ 840 ]

Declaration against a subscriber to a projected Railway Company, on a covenant in the subscription contract to pay the expenses in the event of an Act of Parliament not being obtained. The defendant, who was under terms of pleading issuably, pleaded (inter alia) a plea setting out the subscription contract, which also contained a covenant by the subscribers to pay the amount of their subscriptions in such sums and at such places and times as should be required or appointed by the board of directors. The plea then averred that the defendant had not been required by the board of directors to pay his subscription or the expenses. The plaintiff having signed judgment: Held, that the plea was not issuable.

MANLEY v. THE ST. HELENS CANAL AND
RAILWAY COMPANY.

(2 H. & N. 840—857; S. C. 27 L. J. Ex. 159 ; 6 W. R. 297.)
Certain undertakers of a navigation being incorporated for the pur-
pose of making a canal, and empowered by 28 Geo. II. c. viii., to
take tolls to their own use and behoof; were authorized 'to make
such and so many bridges as and where they should think requisite
and convenient; and to amend, heighten or alter any bridges, and to
turn or alter any highways in, through, upon or near the rivers, cuts
or canals, as may in any ways hinder the navigation or passage
thereon." The Company made a cut through an ancient public highway
near St. Helens, which was then a small village, and carried the high-
way over the cut so made by a swivel bridge. By a subsequent Act,
11 Geo. IV. c. 1., s. 1, to consolidate and amend the former Act, it
was recited "that the navigation cut or canal, and other the works
authorized to be made by the recited Act, have been long since made
and completed; and by section 48, the Company were empowered to
maintain the canal, bridges, &c. By 11 Geo. IV. c. 1., s. 124, all
persons were to have free liberty with boats to navigate the said
canal for the purpose of conveying any goods, &c. By sect. 141,
penalties were imposed on persons leaving open draw-bridges, &e..
after boats had passed. A boatman having opened the swivel bridge
to allow his boat to pass through, a person who was coming along
the road walked into the water just as the boat was coming up to
the bridge, and was drowned. It appeared that when the bridge was
open the end of the highway abutting on the canal was wholly un-
fenced. Two lamps had formerly been kept burning, of which one
had been removed and the other was out of repair. The jury found
that the deceased was drowned by reason of the neglect of reasonable
precautions on the part of the Canal Company, without any negligence
on his own part: Held, First, that the defendants having a beneficial
interest in the tolls were liable to an action, as any other proprietors
of private property would be, for a nuisance arising from it.

Secondly, that the bridge at the time of the accident was in the possession of the defendants, and that the action was therefore properly brought against them and not against the boatman.

Quare, whether the Company had power to erect a swivel bridge to carry the highway, intersected by their works, over the canal, but, assuming that they had such power:

Per POLLOCK, C. B., and MARTIN, B., the recital in the 11 Geo. IV. c. 1., was not a legislative declaration that the bridge was sufficient at the time of the passing of the Act.

Held, further, that, whether or not the bridge was sufficient at the time it was built, the Company were bound to maintain a bridge sufficient with reference to present state of circumstances; and that the jury were warranted in finding a bridge to be insufficient which, when

open, left an unfenced gulf in the highway into which a person passing along the road without any fault of his own was liable to fall. Held also that, under such circumstances, the representative of a person killed by falling into the canal while passing along the highway was entitled, under the 9 & 10 Vict. c. 93, to maintain an action against the defendants.

THE declaration stated, that the defendants being the corporation incorporated by the 11 Geo. IV. c. l., were possessed of a certain canal; and under and according to the provisions of the said Act maintained the canal, together with a certain draw-bridge for connecting the two parts of a public highway, which was intersected by the canal (such bridge being of itself, when closed, a highway across the canal); and the said bridge was so maintained by the defendants as aforesaid, in order that persons navigating the canal with vessels might open the bridge to let such vessels pass the bridge, and thereby remove the connection between the two parts of the highway, and when their vessels had passed, might close the bridge again across the canal, so as to connect the two parts of the highway: that the bridge and canal were so constructed that, when the bridge was opened, part of the highway projected over the water, so that any passenger on the said part of the highway, passing towards the canal, if he passed to and off the end of the said part over the canal, would fall into the canal; the water there being of great depth: Yet the defendants, knowing the premises, in the night time, when the bridge was lawfully opened by a person navigating the canal, wrongfully and negligently suffered the end of the highway, where it projected over the canal, to be without any fence or contrivance to prevent persons passing along the highway, towards the canal, from passing off the same into the canal, and without any light, watch or contrivance, to warn persons, passing along the highway, of the disconnection of the highway caused by the opening of the bridge; by means whereof the deceased, who was passing along the highway, passed to the end of, and off the said part, and into the canal, and was thereby drowned.

Plea. Not guilty. Whereupon issue was joined.

At the trial before Channell, B., at the last Liverpool Summer Assizes, it appeared that the canal of the defendants intersected an ancient public highway, leading from St. Helens to Blackbrook, which existed as a highway before the making of the canal. At the point of intersection was a swivel bridge, and the way across the bridge is part of the highway. At about 8 o'clock in the evening of the 22nd of October, the deceased, who was passing along the highway from St. Helens to Blackbrook, fell into the canal, the bridge having been opened to admit the passage of a barge which was coming up. There

MANLEY

2.

ST. HELENS

CANAL AND RAILWAY CO.

[ *841 ]

Meredith (1), Rex v. The Bristol Dock Company (2), Boulton v.
Crowther (3), Rex v. The London Dock Company (4).

(MARTIN, B.: There is a distinction between a public body acting entirely for the public and one acting partly for the public and partly for their own benefit.

POLLOCK, C. B.: This case does not in the least resemble that of a turnpike trust. The authority of the trustees there is to take the tolls, and dispose of them in the way pointed out by the Act, i.e., pay the expense of the Act, repair the road, reduce the debt, &c. But the money received is not the money of the trustees. They may indeed borrow money if necessary, but cannot put one farthing of it into their own pockets. Whereas the present Act, 28 Geo. II. c. viii., s. 12, enacts, that in consideration of the great charges the undertakers will be at, &c., it shall be lawful for them to take "to and for their own proper use and behoof, in respect of their charges and expenses as aforesaid, for all goods, &c., the rates, tolls, and duties" thereinafter mentioned.

WATSON, B., referred to Scott v. The Mayor of Manchester (5).) Secondly, the works of which this bridge was a part have been declared sufficient by the Legislature. The 11 Geo. IV. c. l., s. 1, recites "that the navigation cut and other of the works *authorized to be made by the 28 Geo. II. c. viii., have been long since made and completed;" and, by section 48, the Company are authorized and empowered to maintain and support the said cut or canal so made as aforesaid under or by the authority of the said Act, together with the several buildings, bridges and other works belonging thereto.

(POLLOCK, C. B.: There are two answers to that argument. First, if the bridge was not sufficient originally that statute did not make it so. Secondly, although sufficient 100 years since, it may be totally insufficient now in the altered state of the circumstances consequent upon the increased population and traffic on the road.)

The question is whether the bridge when constructed, satisfied the requirements of the Act; if so, the 48th section empowers the Company to maintain it, whether sufficient or not. The bridge being thus sanctioned by the Legislature, the undertakers of the works cannot be liable for an accident caused by its

(1) 4 T. R. 794.

(2) 11 R. R. 440 (12 East, 429).
(3) 26 R. R. 528 (2 B. & C. 703).

(4) 44 R. R. 387 (5 Ad. & El. 163). (5) Ante, p. 493 (1 H. & N. 59; 2 H. & N. 204).

MANLEY

r.

ST. HELENS

RAILWAY Co.

insufficiency: Rex v. Pease (1). Suppose the Legislature had authorized this Company to build a bridge a certain number of yards wide, no altered state of circumstances would render them CANAL AND liable to maintain a wider bridge. Thirdly, the insufficiency of the bridge is a public wrong an injury to all the Queen's subjects, in respect of which no individual can maintain an action, unless he has sustained a peculiar damage: Rex v. The Bristol Dock Company (2), The Caledonian Railway Company v. Ogilvy (3). Fourthly, at the time the accident happened, the bridge was not under the control of the defendants but of the boatman, who had altered it from its natural position in order that he might pass with his boat, so that the defendants did not do the act which made the highway dangerous. Brown v. *Mallett (4) shows that the defendants are not liable, unless the bridge was in their possession and under their control at the time of the accident. It is consistent with the declaration that the defendants were possessed of the bridge, not absolutely, but only for others to take possession of and use and have the control of from time to time. Lastly, the declaration is bad for not averring that the bridge was under the control of the defendants: Hancock v. The York, Newcastle and Berwick Railway Company (5), Metcalfe v. Hetherington (6).

(POLLOCK, C. B.: I have no doubt that without any great mechanical ingenuity arrangements might be made to render this kind of bridge safe. I throw out this-(not however as part of the judgment of the COURT)-that there might be some contrivance of such a nature, that when the bridge is moved and consequently danger created, an obstacle should immediately come up which would prevent a man in the dark, or who is blind, from falling into the canal, unless indeed he should choose to climb over the obstacle.)

POLLOCK, C. B.:

We all think this rule ought to be discharged. It has been urged that what was done by this Canal Company was done. by them under the authority of an Act of Parliament passed many years ago, and with the same responsibility as attaches to the trustees of a highway, or other persons acting in the performance of functions entrusted to them by statute. I do not think that argument can prevail. The owners of this canal are to be looked on as a trading Company, who, though the Legislature permits them to do the various acts described in these statutes, are to be considered as persons doing them for

(1) 38 R. R. 207 (4 B. & Ad. 30).
(2) 11 R. R. 440 (12 East, 429).
(3) 2 Macq. 229.

(4) 75 R. R. 806 (5 C. B. 599).
(5) 10 C. B. 348.

(6) 105 R. R. 513 (11 Ex. 257).

[ *848 ]

MANLEY

their own private advantage, and are therefore personally *reST. HELENS Sponsible if mischief ensues from their not doing all they ought,

CANAL AND RAILWAY CO. [ *849 ]

[*850]

or doing in an improper manner what they are allowed to do. By the statutes, the Company are permitted, in certain cases, to make swivel bridges; in the present instance they are not expressly permitted to do so; all they are required to do, when their canal crosses a highway, is to make a sufficient bridge. Now it may very well be that, 80 or 100 years ago, when the population and the communication between these places were small, so that there was little occasion to use the highway, a swivel bridge may have been sufficient; but it may not be sufficient now; and the jury have so found. I cannot help thinking that, in modern times, human life is looked on as of greater value than in olden time. There were many precautions against danger with which our ancestors were satisfied, which do not accord with the improved views which are now taken both by Judges and jurymen respecting the preservation of human life and health. Independently, therefore, of any considerations drawn from changes in population or commerce, the jury here were justified in saying,-" whatever juries 100 years ago would have thought, we think this bridge not sufficient, for it is such as may cause a man to lose his life without any fault on his side." The defendants are responsible in this case, for there is no reason to question either their liability or the verdict of the jury.

The present rule has a further aspect, viz., to arrest the judgment. There is no ground for doing so. The only plea is Not guilty, and the statement of the cause of action in the declaration is, in my judgment, sufficient.

MARTIN, B.:

With respect to the first point, viz. that there is no distinction between this Company and the trustees of a highway, it seems to me there is a most obvious one. It appears that in the twenty-eighth year of the reign of King Geo. II., a certain number of persons were authorized to make this canal, and I find by the recital of the 11 Geo. IV. c. 1., that these works were made. The property in them was divided into 480 shares. Now, I have no doubt, that the shares in this canal constitute a most valuable property, and that there is no analogy whatever between the condition of this Company and that of persons who exclusively and entirely act for a public trust. These are persons to whom the Legislature gave the privilege of forming and completing a most valuable private property, and are as much responsible for an injury from works connected with it as any other owner of private property would be.