of accidents to crossing line. 8 & 9 VICT. C. 20. 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 that this was a breach of his duty in the service of the company for which they were responsible: (Ibid.) Liability of And where a railway crossed a carriage road on a level, and there company in case were locked carriage gates and swing gates for foot passengers, the foot-passengers crossing being on a curve, the view being obstructed in that direc tion by a bridge near it over the line, and the trains being frequent, petitioner in crossing was knocked down by one of two trains which passed about the same time, whilst his attention was directed to the other, it was held by the Court of Common Pleas that, although there might be no statutory provisions for the safety of such a foot passenger, yet, under the circumstances, there was evidence of negligence to go to the jury, and the judge was not bound to nonsuit. "I do not intend," said Erle, C. J., "to lay down a rule as to footpaths elsewhere, or to interfere with the statute law. The ground of my decision is the great degree of risk in this place. There were many trains; it was on a curve and near a bridge; the noises of the different trains would interfere with each other, and the bridge would obstruct the sight; and I am, therefore, unable to say that the judge was bound to nonsuit:" (Bilbee v. London, Brighton, and South Coast Railway Co., 18 C. B. N. S. 584; 34 L J. (C. P.) 182; 13 W. R. 779.) Stubley. Lon- Western Railway This case must, however, be regarded as decided with reference to its own peculiar circumstances, and not as laying down any general principle: (See the remarks of the Court in Stubley v. London and North-Western Railway Co., L. R. 1 Ex. 13; 4 H. & C. 83: 11 Jur. N. S. 954; 14 W. R. 133; 13 L. T. N. S. 376; 33 L. J. (Exch.) 5, 6.) Thus, where a railway crossed a footpath on the level close to a station, a swing-gate being erected by the company some few yards from the line for foot passengers, from which gate the view of the line was very confined, but at the point at which a passenger, after passing the gate, would step on to the line there was a clear view of three hundred yards in each direction, and caution-boards were erected near the crossing, the trains being frequent, and a woman, stepping on to the line immediately after a train had passed in one direction, was killed by another train coming in the opposite direction, it was held that there was nothing in the circumstances to show that the railway company were guilty of negligence in not stationing a watchman at the crossing to warn people, or in not taking any other special precaution, and that, therefore, the company were not liable in an action brought by the husband of the deceased: (Ibid.) In giving judgment, Bramwell, B., remarks with reference to the previous case referred to :-"I do not treat Bilbee v. London and Brighton Railway Co. as an authority. I do not mean that it was not rightly decided; but it establishes no precedent, and lays down no principle. The learned Lord Chief Justice there seems to have intended to guard against its being cited as an authority. One can readily understand that if a railway is made with a curve so abrupt that a person cannot see the approach of a train, or if there be a Duty of Company to place men at gates. 363 tunnel in a curve so that one could not see through the tunnel, in 8 & 9 VICT. C. 20. such a case a passenger might say, 'No care on my part would warn me of the danger.' He must stop there for ever unless there is somebody to tell him. That is all the case of Bilbee v. The London and Brighton Railway Co. seems to have decided." and South Coast Bilbee v. London, Brighton, and South Coast Railway Co. was fol- Stapley v. Lonlowed by the Court of Exchequer in the case of Stapley v. London, don, Brighton. Brighton, and South Coast Railway Co., (L. R. 1 Ex. 21; 4 H. & C. 93; Railway Co. 11 Jur. N. S. 945; 13 L. T. N. S. 406; 14 W. R. 133; 35 L. J. (Ex.) 7,) of which the facts are as follow:-The defendants' railway crossed a highway on a level close to a station. On each side of the railway were gates across the carriage-way, and swing-gates or turnstiles for foot passengers. By the defendants' rules and regulations the gates were always to be kept closed across the carriage-way, except when opened to allow carriages to cross, and they were never to be opened until the gateman had satisfied himself that no train was due or in sight. A foot passenger crossing the railway was killed by an express train, which passed through the station without stopping. There was no servant of the defendants at the gate or on the platform of the station. The carriage gate on the side from which the deceased came was seen after the accident to be partly open. It had been seen shut half an hour previously, and there was no evidence of how it came to be open, or whether the deceased came through the carriage gate or through the turnstile. The train was four minutes overdue. There was a curve in the line at the spot, and the train would not be visible to a person standing at the gate till it came within six hundred yards. The deceased was deaf, was in the habit of coming to the station, and knew the times of the trains. It was held in an action brought by the executors of the deceased that a foot passenger, who found the carriage gate open, would be led to believe that no train was due, and that upon the whole case there was some evidence of negligence to be left to the jury. And Channell, B., in delivering the judgment of the Court, observed, "The principle on which we desire to act is that laid down in Bilbee v. London, Brighton, and South Coast Railway Co., that although it is the duty of the Court not to impose on railway companies burthens larger than the Legislature intended them to bear, and they may not be bound to place men at every gate along the line, yet it may be a duty incumbent on them to do so where there is an immense amount of traffic, or where there are other circumstances which require it." turnpike roads XLVIII. Where the railway crosses any turnpike road As to crossing of on a level adjoining to a station, all trains on the railway adjoining sta shall be made to slacken their speed before arriving at tions. such turnpike road, and shall not cross the same at any greater rate of speed than four miles an hour; and the company shall be subject to all such rules and regulations with regard to such crossings as may from time to time be made by the Board of Trade. 8 & 9 VICT. c. 20. bridges over roads XLIX. Every bridge to be erected for the purpose of Construction of carrying the railway over any road shall (except where otherwise provided by the special act) (a) be built in conformity with the following regulations; (that is to say,) The width of the arch shall be such as to leave thereunder a clear space of not less than thirty-five feet if the arch be over a turnpike road (b), and of twentyfive feet if over a public carriage road, and of twelve feet if over a private road (c): Effect of special directions as to bridges in special aet. The clear height of the arch from the surface of the road shall not be less than sixteen feet for a space of twelve feet if the arch be over a turnpike road, and fifteen feet for a space of ten feet if over a public carriage road; and in each of such cases the clear height at the springing of the arch shall not be less than twelve feet: The clear height of the arch for a space of nine feet shall not be less than fourteen feet over a private carriage road: The descent made in the road in order to carry the same under the bridge (d) shall not be more than one foot in thirty feet if the bridge be over a turnpike road, one foot in twenty feet if over a public carriage road, and one foot in sixteen feet if over a private carriage road, not being a tramroad or railroad, or if the same be a tramroad or railroad the descent shall not be greater than the prescribed rate of inclination, and if no rate be prescribed the same shall not be greater than as it existed at the passing of the special act. the (a) This section is intended to impose restrictions upon company as to the mode of building bridges, so far as the mode of building them is not defined by any special directions either in the special act or in the earlier provisions of the Railways Clauses Act, 1845, and has not the effect of removing any restrictions imposed by any such special directions: (Attorney-General v. Terkes bury and Malvern Railway Co., 1 De G. J. & Sin. 423.) Consequences of In an agreement between a railway company and a landowner not incorporating concerning a bridge crossing a street, this section should be incorcontracts with porated in order to obtain the benefit of the statutory length of twenty-five feet; if this be not done the company will have to make the bridge of the full width of the street: (Clarke v. Manchester, &c., Railway Co., 1 J. & H. 631.) this section in landowners. What is a "turn (b) A turnpike road within the meaning of this section is one on pike road" within which toll gates are by law erected and tolls taken thereat: ( tham Bridge, &c., Co. v. London and Southampton Railway Co., 6 this section. Bridges over Roads-Bridges over Railway. 365 Street not a M. & W. 428; 1 R. C. 653.) But a street in a town, no matter how 8 & 9 VICT. C. 20. important or how great its traffic, which is not maintained by tolls paid by passengers, is not within the provisions of this section: turnpike road. (Reg. v. East and West India Docks, &c., Railway Co., 2 E. & Bl. 466; 22 L. J. (Q. B.) 380.) be taken as part of turnpike road. (c) Footpaths are not to be taken as part of the turnpike road Footpaths not to over which the arch of the bridge is to be thrown: (Reg. v. Rigby, 14 Q. B. 687; 19 L. J. (Q. B.) 153; 6 R. C. 479.) "There is no pretence for saying that they can be taken into account in ascertaining the average available width of the road for the passage of carriages:" (Per Patteson, J., Ibid.) roads by piers A railway company being empowered by their act to construct Obstruction of bridges over roads, and to erect piers and arches for that purpose, for bridges. provided they left under each arch a span of fifteen feet, were not restrained from crossing a turnpike road by means of a bridge, the span of the arch of which was twenty-four feet, the original roadway having been forty feet wide. The Vice-Chancellor, however, in this case recommended that the opinion of a court of law should be taken: (Attorney-General v. London and Southampton Railway Co., 1 R. C. 302.) (d) Certain road trustees having given a modified assent to the Sinking road so passing of the act, on condition that their road should not be inter- as to obtain suffifered with, the company were held not to be prevented from sink- arch. ing the road so as to obtain the requisite height for an arch, even although occasional floods were likely to occur in consequence of such sinking: (Aldred v. North Midland Railway Co., 1 R. C. 404.) cient height for way. L. Every bridge (a) erected for carrying any road over Construction of the railway shall (except as otherwise provided by the bridges over railspecial act) be built in conformity with the following regulations; (that is to say,) There shall be a good and sufficient fence on each side The road over the bridge shall have a clear space be- (a) In constructing the approaches to a landowner's premises, the Making new bridge instead of repairing old one. 8 & 9 VICT. c. 20. company proposed to pull down an old bridge, instead of adapting the old one for the purpose of such approaches, and in consequence it became necessary further to divert roads, and change the approaches, as directed by an award made with respect to them. No injunction was granted: (Wood v. North Staffordshire Railway Co., 1 M N. & G. 278.) Temporary bridges. "Present inclination" of approaches. The width of the bridges need not of the road in certain cases. As to the power of the company to erect temporary bridges for the purpose of transporting materials, or of constructing a permanent bridge by its side, see the notes to s. 16, ante, p. 334. (b) Where a special act provided that in carrying a road over a railway, the ascent to the bridge should not be more than one foot in thirty, except where the "present inclination" should be steeper, and then that the gradient should not be steeper than such "present inclination," it was decided "that when the Legislature spoke of the present' inclination of the turnpike road, they meant the inclination of the road, as it might exist at the time of taking the road." The restriction was also held to apply to a substituted or diverted road, as well as to a previously existing one: (AttorneyGeneral v. London and Southampton Railway Co., 1 R. C. 283.) (c) The provisions of the act as to the rate of the ascent of a road, &c., are not controlled by the proviso as to damages contained in s. 16, ante, p. 340: (Reg. v. East and West India Docks, &c., Railway Co., 2 E. & B. 466; 22 L. J. (Q. B.) 380.) (d) As to what is a "turnpike road," see notes to preceding sec tion. LI. Provided always, That in all cases where the average exceed the width available width for the passage of carriages of any existing roads within fifty yards of the points of crossing the same is less than the width hereinbefore prescribed for bridges over or under the railway, the width of such bridges need not be greater than such average available width of such roads, but so nevertheless that such bridges be not of less width, in the case of a turnpike road or public carriage road than twenty feet: Provided also, that if at any time after the construction of the railway the average available width of any such road shall be increased beyond the width of such bridge on either side thereof, the company shall be bound, at their own expense, to increase the width of the said bridge to such extent as they may be required by the trustees or surveyors of such road, not exceeding the width of such road as so widened, or the maximum width (a) herein or in the special act prescribed for a bridge in the like case over or under the railway. (a) In Reg. v. Rigby, (14 Q. B. 687; 19 L. J. (Q. B.) 153,) Patteson, J., thus sums up the provisions of this section and s. 49:-"Much discussion took place on the argument as to the word 'maximum," but the meaning of the Legislature is very plain. Where the average |