so constructed or used as to cause a public or private nuisance. The principal Act dealing with locomotives is that of 1865, and though by sect. 1 it is only enacted as a temporary Act, it has been from time to time renewed by the Expiring Laws (Continuance) Acts (d). The regulations for working and using locomotives are set out in sect. 3, and, as amended by the Locomotives Act, 1898, are as follows:(1) Part of this sub-section has been repealed by sect. 5 of the Locomotives Act of 1898, which substitutes the following rules:—

(1.)-(a) Two persons shall be employed in driving or attending to the locomotive; and

(b) In the case of any locomotive not being a steam roller another person shall be employed to accompany the locomotive in such a manner as to be able to give assistance to any person with horses or carriages drawn by horses meeting or overtaking the locomotive, and shall give such assistance when required; and

(c) When a locomotive is drawing more than three waggons, another person shall be employed for the purpose of attending to the waggons. There is a further proviso in the above section, rendering it unnecessary to employ more than five persons in all in the case of two locomotive plough engines.

(3) The drivers must give as much space as possible for the passing of other traffic.

(4) The whistle must not be sounded for any purpose whatever; the cylinder taps must not be opened within the sight of any person riding, driving, or in charge of a horse; the steam pressure is not to exceed the limit fixed on the safety-valve, so that no steam shall blow off.

(5) A locomotive must be instantly stopped if the person preceding it, or any other person with a horse or carriage drawn by a horse, signals that a stoppage is required.

(6) Two efficient lights are to be carried, one on each side on the front of the same, between the hours of one hour after sunset and one hour before sunrise. The words from "between " to "sunrise " are repealed by

(d) See also Highways and Locomotives Amendment Act, 1878, sects. 28, 30, 33. The principal Act is 28 & 29 Vict. c. 83.

sect. 18 of the Act of 1898, and re-enacted in other words by sect. 5 (3), which also provides that an additional red light shall be carried in the rear of the locomotive, or of the rearmost waggon drawn by the locomotive.

The penalty for non-compliance with any of the above rules is a fine not exceeding 107., and under sect. 3 of this Act, if the penalty was incurred owing to wilful default on the part of the person in charge, then the owner might recover from such person the penalty imposed; but this portion of the section has been repealed by the Locomotives Act, 1898, under sect. 13 of which Act the owner is liable to a penalty for an offence by his servant, subject to an exemption where he has used due diligence to enforce execution of the Act.

By sect. 4, the speed of locomotives is limited to four miles an hour on the highway, or two miles an hour when passing through a city, town, or village, subject to a penalty not exceeding 10.; but this is subject to any regulations made by local authorities under sects. 31 and 35 of the Amendment Act, 1878. In Cooper v. Hawkins (e), it was held that this section is not binding on the Crown, the Crown not being named therein, and the enactment not being of such a nature as would otherwise bind the Crown (ƒ).

By sect. 6, it is provided that the use of steam ploughs within a distance of twenty-five yards from a road (g) shall be lawful, provided that a person is placed in the road in order to signal when the engine must be stopped, and to assist horses and carriages to pass.

By sect. 7, the name and residence of every owner are required to be affixed to the locomotive, subject to a penalty not exceeding 21. (h).

By sect. 11, it is provided that nothing contained in the Act shall affect the provisions of the forty-first section of the Thames Embankment Act, 1862, by which section it is made illegal to use locomotives along the Embankment laid out under the Act (i).

(e) 19 T. L. R. 620.

(f) But see sect. 16 of the Motor Car Act of 1903, ante, p. 80.

(g) Cf. Locomotive Threshing Engines Act, 1894, sect. 2.

(h) Cf. sect. 76 of the Highway Act, 1835. The fact of his name being so affixed does not render the owner liable for the negligence of a person hiring the locomotive: Smith and wife v. Bailey, (1891) 2 Q. B. 403; 60 L. J. Q. B. 779. See Chapter III.

(i) 25 & 26 Vict. c. 93.

By sect. 12, it is provided that nothing in the Act shall authorize the use of a locomotive so constructed or used as to be a nuisance, or so as to affect the right of any person to recover damages sustained in consequence of the use of the locomotive. Under this section the owner is liable for all damage done for which an action would lie at common law. An owner is, therefore, liable for damage done by sparks escaping from a locomotive and thereby setting fire to a stack of hay; and this is the case even though the engine is properly constructed and is being used without negligence, the reason being that it is a dangerous machine (k).

In 1878, an Amendment Act was passed (7), the larger proportion of which deals with highways only, while a number of important sections affect locomotives.

The first of these sections is the twenty-third. This section, however, does not deal with locomotives only, but with all classes of vehicles. It provides for the recovery of the expenses of extraordinary traffic passing along a highway from the person by whose order such traffic has been conducted. The question of extraordinary traffic has already been dealt with (m). Part II. of the Act deals exclusively with locomotives, and must be considered carefully.

The mode of construction of all locomotives intended for use upon a highway is provided by sect. 28, and the following rules are there laid down :

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

(2) When drawing a waggon or carriage the tires of the driving wheels of the locomotive are to have two inches in width to each ton in weight; if the diameter exceeds five feet, then the width may be decreased in proportion as the diameter is increased, but in such case the width shall never be less than fourteen inches. (3) The width and weight of locomotives are restricted to nine feet and fourteen tons respectively, subject to the proviso that the local authorities enumerated may authorize the use of larger locomotives, upon conditions, within the areas under their control. There is

(k) Powell v. Fall, 5 Q. B. D. 597; 49 L. J. Q. B. 428. And see Port Glasgow, &c. Co. v. Caledonian Rail. Co., H. L. (Sc.), W. N. 1893, p. 29. (1) 41 & 42 Vict. c. 77, see p. 166, supra.

(m) See Chapter IV.

a further proviso protecting locomotives constructed previously to the passing of the Act from the provisions of (2), so long as the tires are not less than nine inches in width.

(4) The driving wheels must be cylindrical and smooth soled, or in the alternative they may have diagonal cross-bars not less than three inches in width nor more than three-quarters of an inch in thickness; but such cross-bars must extend to the full breadth of the tire and must not be more than three inches apart (n). Sub-sect. 4 was varied by an order of the Local Government Board dated the 26th day of November, 1897, which provided that a locomotive might be used the driving wheels of which, instead of being smooth soled or shod with crossbars, were shod with wooden blocks, subject to certain conditions named in such order. This sub-section was further varied by an order of the Local Government Board (0), which substituted for the condition numbered 6 in the former order the following condition :

6. No such wheel shall be used any block of which is so worn that any metal rim surrounding the block protrudes beyond the surface of the block.

Under a similar section to the above sub-section in the Scotch Act (sect. 3, sub-sect. 4, of 1878), it was held, where the driving wheels of a locomotive had diagonal cross-bars not less than three inches in width and not more than threequarters of an inch in thickness, holes being drilled through the cross-bars into which metal spikes could be placed for use in frosty weather, which projected in such a way as to injure the surface of the road, that the use of such spikes was a contravention of the section (p).

The penalty for any offence against the above provisions is a fine not exceeding 57.

By sect. 30, it is provided that all locomotives, when used on a highway, must consume their own smoke; a penalty not exceeding 57. may be inflicted on any person using a locomotive which does not consume its own smoke as far as practicable. Under this section the onus is upon the defendant to show that the engine consumes its own smoke as far as possible (g). The section may be compared with

(n) This is subject to variation by order of the Local Government Board under 59 & 60 Vict. c. 36, sect. 9.

(0) 4 Nov. 1898.

(p) Milne v. Maclennan, 4 F. (Just. Cas.) 79; Court of Justiciary. (9) Pitt-Rivers v. Glasse, 55 J. P. 663.

sect. 1 of the Locomotives on Highways Act, 1896. Under the Smoke Nuisance (Metropolis) Act, 1853 (r), it has been held that the owner of a factory is not (criminally) liable to a penalty for negligently using a furnace so that the smoke is not effectually consumed, when the furnace is properly constructed, and the emission of smoke is caused by some carelessness on the part of a stoker (s); but the owner of a locomotive would appear to be liable under sect. 13 of the Locomotives Act, 1898, unless excepted under sub-sect. 2.

By sect. 3 of the Locomotives Act, 1898, no locomotive may draw more than three loaded waggons without the consent of the local council. By sect. 6 of the Locomotives Act, 1898, the appropriate council may make by-laws, subject to confirmation by the Local Government Board, prohibiting, restricting, and regulating the use of locomotives and waggons drawn by locomotives on highways or bridges within their districts, subject to any grant of a special authority for use when necessary for the delivery of goods, or any other particular purpose.

Every locomotive must be licensed, under sect. 9 of the Act of 1898, the licence being taken out in the county in which the locomotive is ordinarily used, the fee being not more than 107. if the weight is not more than ten tons, with an addition of 27. per ton or fraction of a ton in excess of that weight; a licence plate, with the date, number, and the name of the council by which it is granted, must be placed in a conspicuous position on the locomotive. An additional licence. at a reduced fee may be granted in any other county, otherwise a daily fee is payable when the locomotive is used in a county other than that in which it is licensed. A licence

may be transferred. Under the licensing section (32)

of the Act of 1878, which is now repealed, a steam-roller passing from one county for use in another was held to require a licence in the county through which it passed (†). This would apply to a locomotive, but by sect. 9 (1) of the Act of 1898, agricultural locomotives, locomotives not used for haulage, steam-rollers, and locomotives used in their district by road authorities are not required to be licensed, but only to be registered in the county in which they are used, subject to the provisions of sect. 10, which further pro

712.

16 & 17 Vict. c. 128, sect. 1.

Chisholm v. Doulton, 22 Q. B. D. 736.

London County Council v. Wood, (1897) 2 Q. B. 482; 66 L. J. Q. B.