in any way affect the provisions of the forty-first section of "the Thames Embankment Act, 1862." (m)

Saving as to Actions at Law.

12. Nothing in this Act contained shall authorize any person to use a locomotive which may be so constructed or used as to be a public nuisance at common law, and nothing herein contained shall affect the right of any person to recover damages in respect of any injury he may have sustained in consequence of the use of a locomotive. (n)

(m) The section here mentioned enacts that "it shall not be lawful for any person to use a locomotive engine propelled by steam along the streets or roadways constructed under the provisions of this Act." (n) A similar provision to this is contained in s. 13 of the Act of 1861, ante, p. 235.

In connexion with the recovery of damages in respect of injury caused by the use of locomotives, the following case may be here cited :

The defendant was the owner of a steam-plough, which travelled about the country drawn by a steam-engine, and which also had attached to it a house-van. The van and plough were left for the night on the grassy side of a highway, four or five feet from the metalled part of the road, no attempt having been made to take them into the adjoining field, because the persons in charge considered that it would be impossible so to remove them on account of the slippery state of the ground. During the evening, the plaintiffs' testator drove his mare in a cart along the metalled road. The mare was a kicker, but he was not aware of her vice. Passing the van, the mare shied, and galloped for 140 yards, then fell and kicked the driver, from the effects of which kick he ultimately died. In an action under Lord Campbell's Act (9 & 10 Vict. c. 93, s. 1), by his executors for wrongful and negligent obstruction of the highway, the jury found as follows, viz. That the van was left where it stood unreasonably, and, "considering that no effort had been made to place it in the field," negligently, that there was some appreciable danger in leaving it standing where it did to vehicles passing along the metalled part of the road, that the death of the deceased was occasioned by the van so standing, and by the inherent vice of the mare combined, but not by accident or negligence of the deceased in his management of the mare, and that there was no contributory negligence in the deceased. Upon these findings it was held that the verdict and judgment must be for the plaintiff; for the unauthorised, unreasonable, and dangerous user of the highway by the defendant was the proximate cause of the injury.-Harris v. Mobbs, L. R. 3 Ex. D. 268; 39 L. T. (N. S.) 164. With regard to the liability of the owner of a locomotive for damage

Short Title.

13. This Act may be cited as "The Locomotives Act, 1865; and "The Locomotives Act, 1861," (o) and this Act, shall be construed together as one Act.

by fire caused by sparks emitted from the engine, reference may be made to the case of Jones v. Festiniog Railway Co. (L. R. 3 Q. B. 733; 37 L. J. Q. B. 214; 18 L. T. (N.S.) 902), in which it was held that in order to exempt the company from liability in such a case where actual negligence does not exist, there must be express legislative authority to use locomotive engines, and that it is not sufficient that their use is not forbidden by statute. So in a recent case at nisi prius, where a fire was caused by sparks from a properly constructed traction engine, worked in a proper manner and without negligence, the verdict was entered for the plaintiffs, who had brought their action to recover from the owner of the engine the amount paid by them to the owner of a hayrick which had been burnt; Royal Farmers' Insurance Co. v. Fall.-Times, January 18, 1879.

(0) "The Locomotive Act, 1861," not "The Locomotives Act, 1861," is the short title given by 24 & 25 Vict. c. 70, s. 14, ante, p. 235; and in the 41 & 42 Vict. c. 77, s. 28, both are called "Locomotive" Acts.

THE HIGHWAYS AND LOCOMOTIVES (AMENDMENT) ACT, 1878.

41 & 42 VICT. CAP. 77.

AN ACT TO AMEND THE LAW RELATING TO HIGHWAYS IN ENGLAND AND THE ACTS RELATING TO LOCOMOTIVES ON ROADS; AND FOR OTHER PURPOSES. [16th AUGUST 1878.] WHEREAS it is expedient to amend the law relating to highways in England, and to amend the Locomotive Acts, 1861 and 1865:

Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

PRELIMINARY.

Short Title.

1. This Act may be cited as the Highways and Locomotives (Amendment) Act, 1878.

Application of Act.

2. This Act shall not apply to Scotland or Ireland. (a)

(b)

(a) The Locomotive Act, 1861, originally extended to Great Britain only, but the section (15) so limiting it was repealed by the Locomotives Act, 1865, s. 2, and the two Acts therefore now apply to Great Britain and Ireland. The present Act, however, extends only to England and Wales, and it must therefore be understood that the law relating to locomotives in Scotland and Ireland is not affected by the amendments contained in it. Wales is included in the term " England by 20 Geo. II. c. 42, s. 3.

(b) The remainder of this section does apply to the part of the Act which deals with locomotives.

PART I.

AMENDMENT OF HIGHWAY Law.

(c)

PART II.

AMENDMENT OF LOCOMOTIVE ACTS, 1861 AND 1865.

Weight of locomotives and construction of wheels..

28. Section three of the Locomotive Act, 1861, and section five of the Locomotive Act, 1865, are hereby repealed, so far as relates to England, and in lieu thereof be it enacted that it shall not be lawful to use on any turnpike road or highway a locomotive (d) constructed otherwise than in accordance with the following provisions; (that is to say,)

(1.) A locomotive not drawing any carriage, and not exceeding in weight three tons, shall have the tires of the wheels thereof not less than three inches in width, with an additional inch for every ton or fraction of a ton above the first three tons; (e) and

(2.) A locomotive drawing any waggon or carriage shall have the tires of the driving wheels thereof not less than two inches in width for every ton in weight of the locomotive, unless the diameter of such wheels shall exceed five feet, when the width of the tires may be reduced in the same proportion as the diameter of the wheels is increased, but in such case the width of such

(c) Part I. of the Act, being an Amendment of Highway Law only, is omitted here. It will be found at pp. 181-215, ante.

(d) A "locomotive" is defined by s. 38, post, as a locomotive propelled by steam, or by other than animal power.

(e) This paragraph is to the same effect as part of the repealed section (3) of the Locomotive Act, 1861.

tires shall not be less than fourteen inches; (ƒ) and (3.) A locomotive shall not exceed nine feet in width or fourteen tons in weight, except as hereafter provided; (g) and

(4.) The driving wheels of a locomotive shall be cylindrical and smooth-soled, or shod with diagonal cross-bars of not less than three inches in width nor more than three quarters of an inch in thickness, extending the full breadth of the tire, and the space intervening between each such cross-bar shall not exceed three inches (h)

(f) The 24 & 25 Vict. c. 70, s. 3, simply required that the tires should in no case be less than nine inches in width, and it will be seen from the last proviso to the present section that if a locomotive was constructed in accordance with that requirement before the passing of this Act, it may still be used, although it does not comply with the new requirements.

(g) Under the Act of 1861, the limit of the width was seven feet, and of the weight twelve tons, except in cases where express permission to use a broader or heavier locomotive was granted, in the City of London by the Lord Mayor, or elsewhere by the highway authority, and also, in the case of a parish under a surveyor of highways, by the justices at petty sessions. The limits of width and weight were, however, increased to those allowed by the present Act, by s. 5 of the Act of 1865.

The exception in this paragraph refers to the first proviso to the section.

(h) As to the meaning of "cylindrical wheels," see 3 Geo. IV. c. 126, s. 9, ante, p. 226.

Sec. 3 of the Act of 1861 required that the wheels should be "cylindrical and smooth-soled, or used with shoes or other bearing surface of a width not less than nine inches." And on the construction of those words the following decisions have been given :—

A locomotive engine was used on a turnpike road, the tires of the hind wheels of which were eighteen inches wide and had bars, known by the name of shoes, bolted obliquely across them. These bars were four and a half inches broad, and were placed three inches apart. It was contended before the justices that each shoe must have a continuous bearing width of nine inches, and on the other hand that the wheels had a bearing surface of more than nine inches, taking the measurement across the wheels, as it was shown that never less than nine inches, either of one shoe or of two shoes taken together, was bearing on the ground at one time. The justices having convicted the owner of the locomotive, the conviction was affirmed by the Exchequer Division of the High Court of Justice. Stringer v. Sykes, L. R. 2 Ex. D. 240; 46 L. J. M. C. 137: 36 L. T. (N. S.) 152.