A public way passing obliquely over a railroad, the company placed gates across the way, on either side of the line. Opposite to one of these gates, on the other side of the line, was a yard abutting on the rails. From this yard there was a private way over the rails, with but one outlet, by means of the gate opposite. The plaintiff's carter having finished his work in the yard, drove his cart, after dark, to the entrance to the railroad, and called to the company's keeper at the opposite gate to know if the road were clear. The keeper said, "Yes, come on." The carter proceeded, when the cart and horses were struck by a passing train:—Held, that though section 47. of the Railways Clauses Consolidation Act, in the case of public roads crossed by a railway on a level, simply orders the company to maintain gates across the road and employ proper persons to open and shut the gates and keep the gates closed, except when horses, carriages, &c. have to cross the railway, yet that there is implied in those words a direction to the company to keep persons from passing through such gates except when it is reasonably safe to do so, and that whatever might have been the case had the carter been using an ordinary private road over the railway, the fact that the only outlet to this road was by means of the public gate, placed him in the same position as if he had been using the public way; that the answer of the gatekeeper was equivalent to an invitation to come upon the railroad, and this was a breach of his duty in the service of the company for which they were responsible.

Declaration-that the plaintiff before and at the time of committing the grievances hereinafter mentioned was possessed of a certain cart or lorry, and, to wit, two horses, and the defendants were possessed of a certain line of railway, which said railway crosses at a level a certain public road. That the defendants, before and at the time when, &c., were in the habit of NEW SERIES, 35.-Q.B.

driving and running by their servants. divers engines, tenders and trains along the railway and across the road, and it became and was the duty of the defendants to put and place proper and sufficient gates properly ordered and regulated, and to keep at the said crossing, and to keep the gates and maintain at the crossing proper and efficient officers and servants for the safety and protection of persons lawfully using the road. That at the time when, &c. the cart and horses were lawfully and properly using the road, and were being lawfully and properly drawn across the railway at the crossing, yet the defendants wholly failed to put and place at the crossing proper and sufficient gates, or to keep such gates properly ordered and regulated, and wholly failed to keep and maintain at the crossing proper or effectual officers or servants, and the defendants maintained and kept the crossing so negligently and improperly unprotected by gates, and provided such improper, inefficient and incapable officers and servants at the crossing, and so negligently and improperly conducted. themselves in and about the premises, and so negligently, carelessly and improperly drove a certain locomotive engine, tender and train of carriages attached thereto over and across the road at the crossing while the plaintiff's cart and horses were so lawfully and properly using the road, and were so being lawfully and properly driven across the railway at the crossing as aforesaid, that the engine, tender and train struck, knocked down and upset the plaintiff's cart and horses, whereby the cart was crushed and broken and rendered altogether useless to the plaintiff, and one of the horses was killed, and the other of the horses was so damaged, wounded and injured that it became altogether useless to the plaintiffs, and it became and was necessary to put it to death, and it was accordingly put to death.

There was also a second count in general terms, ascribing the accident to the negligence of the defendants.

Pleas-First, not guilty. Secondly, that at the time when, &c. the said cart and horses were not lawfully and properly using the road and being lawfully and properly driven across the railway at the crossing as aforesaid.

Upon these pleas issue was joined.

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At the second trial of the action, at the Liverpool Spring Assizes, before Shee, J., it appeared that a part of the defendants' line between Liverpool and Warrington passed obliquely over a carriageway. Across this way, on either side of the line, the company had placed gates, pursuant to the requirements of the Railways Clauses Consolidation Act, section 47. Opposite to one of these gates, on the other side of the line, was a yard belonging to one Crossfield, abutting on the rails. From this yard there

was a private way over the rails, with but one outlet, by means of the gate opposite. Anybody using the private road in approaching Crossfield's yard entered at the public gate and passed through it on his return. Anybody using the public way from the north side of the railroad also entered at the public gate, but turned to the right of the private road in crossing the rails and went out at the opposite public gate. The plan below will shew the position of the railroad and the two ways.

gate was open at the time of the accident. His Lordship left to the jury the question, was M'Grath guilty of negligence which caused the accident, or was it caused by the carter going across the rails without proper caution? The jury found in favour of the plaintiff, the damages being fixed by consent at 1007. Leave was reserved to the defendants to move to enter a verdict or a nonsuit, if the Court should be of opinion that there was no evidence of negligence to charge the defendants. The jury at the first trial had also found a verdict for the plaintiff.

A rule nisi having been obtained to enter the verdict for the defendants, or for a new trial,

Mellish and Pope now shewed cause.From the verdict of the jury it must be assumed that M'Grath was guilty of negligence. It will be contended that for this negligence the company are not liable, as section 47. of the Railways Clauses Consolidation Act only casts upon them the duty of employing a keeper to open and shut the gates at the level crossing, to employ proper persons to open and shut such gates and to keep such gates constantly closed across the road on both sides of the railway, except "when horses, cattle, carts or carriages have to cross the railway." But by employing a keeper of the gate the company make him their agent, to give information respecting it and respecting the state of the line. Stapley v. the London, Brighton and South Coast Railway Company (1) is in favour of the plaintiff. There the person injured was a foot passenger, yet the company were held liable in consequence of the keeper of the carriage gate having left it open. In the case of Stubley v. the London and NorthWestern Railway Company (2) the danger was manifest, and there was nothing to invite the deceased on to the railway. Neither can the company contend that their keeper has no duty towards a person using a private road. If they take upon themselves a duty which the law prima facie casts upon the individual, they are liable. The evidence adduced at the trial was sufficient to sustain the verdict.

(1) 35 Law J. Rep. (N.s.) Exch. 7. (2) Ibid. 3.

Edward James, Aspinall and M'Rory, in support of the rule.-There was no breach of duty on the part of the company for which they are responsible in this action. No proof was given at the trial that the carriage gate which the carter attempted to pass through was open. The duty of M'Grath was merely to attend to the public crossing, and if people using the private road relied upon him to tell them when to come over they cannot throw the burden of any accident which has been caused thereby on the company. All that he had to do was to open or shut the gates; he is not required to say when the line is safe. If the defendants are liable, they would be liable if M'Grath refused to answer the question addressed to him. In the case of Stapley v. the London, Brighton and South Coast Railway Company (1), the crossing was on a public road, thus distinguishing it from the present case. The case of Stubley v. the London and NorthWestern Railway Company (2) is in point, and explains the case of Bilbee v. the London, Brighton and South Coast Railway Company (3), shewing that that decision was founded on special circumstances and laid down no fixed principle. By section 68. of the Railways Clauses Consolidation Act, the company are required to erect gates for the accommodation of adjoining landowners, but they are not called upon to guard these gates. The verdict is directly in the teeth of the evidence adduced at the trial, and ought to be set aside.

BLACKBURN, J.-After considering both the grounds which have been relied upon, I think that this rule ought to be discharged. The question of fact is, whether the accident was owing to M'Grath's negligence. A new trial has already been obtained, on the ground that the verdict was against the evidence; and as this verdict has been supported by the finding of a second jury, I do not think that we ought to interfere with it. The other question, which is well worthy of consideration, is, whether the negligence imputed to M'Grath was negligence within the scope of his duty so as to make the company responsible. It

(3) 18 Com. B. Rep. N.S. 584; s. c. 34 Law J. Rep. (N.s.) C.P. 182.

appears that the company have constructed their line so as to pass transversely over a public highway, and that there is a private way from Crossfield's yard over the railway to a gate on the opposite side, which is one of the gates erected by the company for the purpose of guarding the level crossing. As to private ways, section 68. of the Railways. Clauses Consolidation Act imposed upon railway companies the duty of erecting all necessary gates and other works for the accommodation of landowners adjoining the railway, and these gates are left under the control of those for whose benefit they are made, and who are liable to a penalty if they leave them open. And by section 47, where a turnpike or carriage road is crossed on a level, the company are to keep good and sufficient gates on each side of the road, and employ proper persons to open and shut the gates.

The act does not say that these "proper persons" when they open such gates, are to look and see whether it is reasonably safe and proper to do so, and that if the line is in such a state that it would be dangerous to cross it they are to exercise their discretion, and prevent it from being crossed; but it plainly means that the gate-keepers are to exercise reasonable diligence in keeping the line clear. In Stapley v. the London, Brighton and South Coast Railway Company (1) the company had made regulations, by which they directed their gate-keepers to exercise their discretion, and look along the line and satisfy themselves that no train or engine was in sight. These were very proper regulations; but I think that the company were bound to observe them whether they so directed their servants or not, and that it is the duty of the keeper whom they employ to see that the line is clear. Here the occupation-road crosses the line in such a way that on the west side of it there is a public gate, through which Mr. Crossfield (who is entitled to the private way) has no occasion to pass; but on the side opposite this gate, instead of making one outlet for the private way and another gate for the public road, the company have constructed one common gate for both ways. It may be that a different arrangement was impracticable; but whether this were the case or not, one gate has been constructed, and it is the duty of the keeper stationed

at it to exercise the same discretion with regard to all persons who enter, whether for the purpose of going to Crossfield's yard or of passing over the public road. In the present case the matter is a little complicated, because the carter was going from Crossfield's yard; but as he could only clear the railway if the gate on the opposite side were kept open, it was absolutely necessary when he started from the private gate, to call to the keeper on the opposite side to open the public gate. According to the carter's evidence, he did call out, and the answer was, "Come on." Now, there can be no possible doubt that if M'Grath called out, knowing or having the means of knowing that the line was not clear, he was guilty of negligence. Whether, with any such means of knowledge, he did call out, is a question of fact; but if having the custody of the gate he is addressed in words which substantially amount to these, "Is the line clear?" and he answers "Yes," or words to that effect, it seems to me that he is acting in a matter which belongs to his regular duty, and that what he says is an invitation to the person who questions him to come upon the railway. I think, therefore, that this is a stronger case than Stapley v. the London, Brighton and South Coast Railway Company (1). In that case the gate-keeper was absent, and had left the carriage gate open, and although the person injured was a foot passenger, on whom there was no duty to open and shut the gate, yet it was held that as he might reasonably think when he saw the gate open that this was an invitation to carriage passengers, and that the line was safe, there was evidence of negligence on the part of the company. Here the only gate which the carter could use was that placed for the public traffic, and it was much more within the duty of the gatekeeper to warn a man who could not pass without this gate being opened. I think, therefore, that there is evidence of negligence on the part of the company.

I wish to add this. I do not think that this case requires us to decide what would have been the liability of the defendants if the private road had been near M'Grath's hut, and had not passed through the public gate. It would have been his duty, as a matter of humanity, to have warned any

body proposing to cross the line; but I do not think it necessary to decide whether, if he had failed to do so, this would have been a breach of duty for which the company would be responsible.

MELLOR, J.-I am of the same opinion. A manifest miscarriage of justice would be required to set aside the verdict as against evidence, and I cannot say that this verdict was manifestly wrong. The next thing which we have to consider is, was there any misdirection in the manner in which the case was left to the jury? It has been contended, by Mr. James, that the statute imposes only the naked obligation of opening and shutting the gates upon a level crossing. But this argument seems to me to lead to the absurdity of supposing that the gate-keeper must allow anybody who wishes to do so, to pass at the risk of being crushed by the approaching trains. This cannot be the case. The gate-keeper is not a mere machine; he must exercise some judgment as to whether it is or is not safe to open the gates. There can be no doubt as to what is done in practice, as most persons who have passed through such gates will remember that they have been occasionally stopped by the keepers. It has been said, that whatever may be the rule as to gates across a public way, this rule does not apply to gates across a private way. But I think that we are relieved from the necessity of considering this question, for the gate was placed across both the public and the private way. Now, the company were not bound to keep one gate in front of both ways; they kept it in this position for their own convenience, and the obligation of the keeper is the same towards all persons who have a right to make use of the gate. I think, therefore, that the keeper might reasonably be expected to say to all persons proposing to cross the way by means of the gate, "Come on," or Keep back," as occasion might require; and that as in Stapley v. the London, Brighton and South Coast Railway Company (1), the circumstance that the gates were left open was said, by my Brother Channell, to amount to an invitation to passengers to cross the railway, so here the words used by M'Grath may be said to have the same effect. I think, therefore, that in calling out "Come on," he was not going beyond the line of

his duties as servant to the company, and that they cannot escape from their liability in this action.

LUSH, J.-I am of the same opinion, on the ground that the conduct of the gatekeeper amounted to a breach of duty, for which the company are responsible. The defendants have asked for a literal interpretation to be put upon section 47. of the Railways Clauses Consolidation Act, which provides, "that if the railway cross any turnpike-road or public carriage-road on a level, the company shall erect and at all times maintain good and sufficient gates across such road on each side of the railway, where the same shall communicate therewith, and shall employ proper persons to open and shut such gates, and such gates shall be kept constantly closed across such road on both sides of the railway except during the time when horses, cattle, carts or carriages passing along the same shall have to cross such railway, and such gates shall be of such dimensions and so constructed as when closed to fence in the railway, and prevent cattle or horses passing along the road from entering upon the railway; and the person intrusted with the care of such gates shall cause the same to be closed as soon as such horses, cattle, carts or carriages shall have passed through the same." They contend that the words of this section only mean that the gates are to be opened or shut as occasion may require. But this is too narrow an interpretation; the section was framed to protect passengers using a level crossing, and the words opening and shutting the gates" are the express formula, indicating a much larger amount of duty than is expressed in the bare words. It has also been said that the duty imposed by the section is only to keep, when necessary, cattle from crossing the railway, and that there is no duty with regard to foot passengers, and no duty with regard to persons using a part of the line in the exercise of a private right of way. But the object of the act is to prevent persons from crossing the railway upon occasions when it would be dangerous to do so. Now, suppose a person on horseback and a foot passenger arrived at one of these gates at the same time, went through and both perished, are the company to be held liable