Gorman v The Waterford and Limerick Railway Company

• Jurisdiction: Ireland
• Judgment Date: 28 November 1899
• Date: 01 January 1900
• Court: Queen's Bench Division (Ireland)

Gorman

and

The Waterford and Limerick Railway Company.

Vol. II.] QUEEN'S BENCH DIVISION. 341 GORMAN v. THE WATERFORD AND LIMERICK Q- s. Dir. RAILWAY COMPANY (1). Nov. 22, 28. Railways Clauses ActsTramways (Ireland) Acts"Light railway"Level crossingGatesDuty to employ persons to open and shut such gates. A light railway (or tramway) constructed under the Tramways (Ireland) Acts is not subject to the regulations as to gates and persons in charge at level crossings imposed by the Railways Acts. In the case of such light railway or tramway the obligation in this respect is that imposed by the Tramways (Ireland) Acts and by the terms of the Order in Council and Grand Jury Presentment authorizing the undertaking. Case Stated, pursuant to 27 & 28 Vict. c. 99, sect. 35, by Mr. Justice Murphy, on the hearing before him at the Summer Assizes for County Sligo, of a civil bill appeal from a decree for £20, awarded by the County Court Judge, for damages for the tilling of the plaintiff's sheep on the defendant company's railway line. The Collooney and Claremorris Light Railway, on which the sheep were killed, was constructed by Messrs. Fisher and L'fanu, in the year 1891, out of moneys advanced by the Treasury; and the line, when completed, was transferred, with the sanction of the Treasury, under the Transfer of Railways Act, 1890, to the defendant company, who (it was found) " worked it as part of their system." The sheep in question and others had strayed off the plaintiff's lands, which were situate about half a mile from the line and did not anywhere abut on it. They had got out upon the public road from Sligo to Collooney, and, passing along it, had got upon the railway line (which here ran parallel and close to the road), through an open gate, at a point where a lane, branching off from the public road, intersected the railway line. The sheep were found dead a mile lower down, and it was assumed that they were killed by a passing train. The lane, after crossing (1) Before Siu Peter O'Brien, L.C.J., and Murphy, Gibson, and . Madden, JJ. 342 THE IRISH REPORTS. [1900. Q. B. Div. the railway line, ran to and across another county road. It was 1899- not repaired by the county, and was in part grass-grown ; but the G oeman iearne(j JU(jge found as a fact that it was a public pass, and could W. & L. be used for cars and carts by all persons, and that it was used by Railway Co. ^ public on foot and with cars, carts, and horses. Where it crossed the railway there were, at each side of the line, single gates, fastening by a latch and opening out to the road on one side and a field (through which the lane went) on the other. The eon-tractors by whom the line was made had not built any lodge or cottage at these gates, and none such had been required to be made by the final award or deposited plans (referred to in the case), which merely provided for gates; and these (it was found) were most frequently left open. It was proved that, after the acquisition of the lands for the purposes of the railway, the contractors' engineer had acquired by contract for a small sum, from the occupier of the land adjoining the gate, some four perches of land on which a cottage could have been built, and had stated at the time that this plot was required for building a cottage. It was contended before Murphy, J., that the company was under no duty to see that the gates were kept shut, as they were not " gates-on a turnpike road or public carriage road " (Railway Clauses-Act, 1845, 8 Yict. c. 20, sect. 47), and that the company were not required to construct or maintain a lodge or gate-keeper's cottage,, as they would be at the intersection of such a road; and further, that, even assuming they were under such a duty, they were not liable to the plaintiff, as his sheep were straying unattended on the public road, and therefore were trespassers. The learned Judge expressed the view that in his opinion the decree should be affirmed, but consented to state this case for the opinion of the Court (it being agreed that the defendants should in any event pay the plaintiff his costs of the case) on the question whether the Judge was right in deciding to affirm the decree below or not. Coll, for the defendant company : This lane is not " a public carriage road " within sect. 47 of the Railways Clauses Act of 1845; but, whether or not, that section has no application here. The Tramways and Light Railways Acts are a code completely distinct from the Railways Acts. Vol. II.] QUEEN'S BENCH DIVISION. 343 1899. secured by the provisions of the Railways Clauses Acts; in the case of a tramway or light railway the same object was attained Go*MAN by the regulations as to the deposit of plans, sections, &c, by the W. & L. ...... i, Railway Co. right of interested persons to oppose the scheme, by the necessity of obtaining the concurrence of the Grand Jury and Presentment...