pany, or unreasonable. The purposes for which they can be made are defined by the Acts of 1845 and 1889, as " for regulating the mode by which, and the speed at which, carriages using the railway are to be moved or propelled ; for regulating the times of the arrival and departure of any such carriages ; for regulating the loading and unloading of such carriages, and the weights which they are respectively to carry ; for regulating the receipt and delivery of goods, and other things which are to be conveyed upon such carriages; for the pre vention of smoking, and the commission of any other nuisance in or upon such carriages, or in any of the stations or premises occupied by the company ; and, generally, for regulating the travelling upon, or using, or using and working of the railway." And also for maintaining order in and regulating the use of railway stations and the approaches thereto. The bye-laws must be approved by the Board of Trade, reduced into writing, and have affixed to them the common seal of the company. They are also to be published in a conspicuous part of every station belonging to the company. Any person who breaks a bye-law forfeits for every offence any sum, not exceeding £5, imposed, by the company in the bye laws as a penalty for any such offence ; and if the infraction or non-observance of any such bye-law is attended with danger or annoyance to the public or hindrance to the company in the lawful use of the railway, the company may summarily interfere to obviate or remove such danger, annoyance, or hindrance, without prejudice to the recovery of any penalty incurred by the infraction of the bye-law. It may be taken as a general principle that a bye-law is void, as repugnant to the common law, so far as it seeks to inflict a punishment in respect of some act of which fraud is not an ingredient, or in the mere doing of which fraud is declared to be implied. Thus a bye-law against using a return ticket except on a certain specified day is void, unless such a user is prohibited only when it is associated with an intent to defraud (Ilufam v. North Staffordshire By. Co.). And it would be void as unreasonable if it imposed a penalty in addition to payment of fare from the place of starting, unless a passenger who rides in a carriage of a superior class can himself show that he had no intention to defraud (Dyson v. L. and N.-IV. By. Co.).
Special duties to the special character of a railway has made it necessary for the legislature to impose certain obligations upon the companies in relation to the construction and maintenance of the ways, in order that the safety of the public may be guarded as effectively as possible. Where for example a railway passes across a public road by means of a level crossing, it is important that every reasonable precaution should be taken against accidents. Such a crossing can exist only when authorised by a company's special act, for the principal authority requires a public road to be carried over or under a railway by means of a bridge ; but the local justices have a certain power to authorise a level crossing over a high way which is not a public carriage road. When, however, a railway does in fact cross a public carriage road on a level, then the company is bound to erect and at all times to maintain good and sufficient gates across the road on each side of the railway, and it must employ proper persons to open and shut them. Such gates should always be kept closed across the road on both sides of the railway except when passing horses, cattle, or vehicles have to cross the railway. The gates are required to be of such dimensions and so constructed as, when closed, to fence in the railway, and to prevent cattle or horses passing along the road from entering upon the railway. The gatekeeper, under a penalty of 40s., must close the gates as soon as the horses, cattle, or vehicles have passed through. Gates may also be kept closed across the railway instead of across the road. If the railway crosses at a level a highway other than a carriage road, it must make and maintain convenient ascents, descents, and approaches, with handrails or other fences ; and if the highway is a bridleway, must erect and maintain gates on each side of the railway at the places of communication with the highway; or if it is a footway, gates or stiles. When shunting trains to pass a train over
a level crossing the company must not at any time allow any train, engine, carriage, or truck to stand across it. If a company does not keep a sufficient lodge and keeper at a level crossing it incurs a heavy penalty ; and if the safety of „the public demand it, the Board of Trade has power to require even a public carriage road to be carried over or under a railway under a bridge. Non-com pliance by a railway company with any of these requirements is strong evidence, in the event of an accident, of its negligence. Nevertheless, because a company is under these obligations the public is not consequently relieved from a reason able performance of the natural duty of looking out for danger and doing its best to avoid it. Lights should be watched, for instance ; whistles should be attended to. lf, however, the gates are left open this really amounts to a state ment and a notice to the public that the line is at the time safe for crossing ; and any person who under such circuinstances proceeds to cross the line would pro bably be supposed by a jury to have been influenced to do so by the fact of the gates being open (IVanless v. N.-E. ley. r., Screens, or structures in their nature, arc required to be erected between a railway and a near highway if' and when the Board of Trade so directs, as a result of representations made to it by a road authority that there is reason to apprehend danger to passengers on the road in consequence of horses being frightened by the sight of the trains. A company is under no obligation to put up such a screen unless so directed by the Board of Trade, and would con sequently not generally be liable for the consequences of horses being frightened by the sight of the trains (Simian v. L. and N.-TV. 1Y. Co.)—certainly not if the horses were frightened by merely the reasonable noise of' the trains, though it would be otherwise if the noise was caused by the unreasonable and negligent handling of the train, Sparks from an engine, which cause damage to adjoin ing property, cannot give rise to an action against the company unless they are the result of' unreasonable and negligent management—of the absence of proper and appropriate precautions. And this is so though it is true generally that a person who uses a dangerous instrument is liable, without proof of negligence, for any damage it may cause. In the case of railways, however, the use of engines is sanctioned by the legislature, and the courts accordingly assume that such sanction associates itself with the natural results of that use (Vaughan v. Taff Vale ly. Co.).
Fences.—There is imposed upon every railway company, by section 68 of the Act of 1845, an imperative obligation to make and always maintain certain fencing structures for the benefit of the owners and occupiers of land adjoining a railway. The section proceeds as follows : "Sufficient posts, rails, hedges, ditches, mounds, or other fences, for separating the land taken from the adjoin ing lands not taken, and protecting such lands from trespass, or the cattle [including pigs] of the owners or occupiers thereof from straying thereout by reason of the railway, together with all necessary gates, made to open towards such adjoining lands and not towards the railway, and all necessary stiles." This protection will be seen to be in favour of adjoining owners and occupiers only, and if their cattle are injured by reason of insufficient fencing the company will be liable. "If a man is driving his cattle along a road which runs along side a railway, or even allowing them to be upon it, he is entitled to protection under section 68 as an 'occupier ' of land adjoining the railway, but if his cattle are straying on the road, or are driven there with his consent, although his cattle are doing the very same thing, and are running precisely the same danger as if they were there with his consent, he is not an 'occupier ' of the road, and section 68 does not apply to him " (Charman v. S.-E. Ry. Co ; and see Corry v. G.-IV. Ry. Co.). And if cattle stray into a field adjoining the line, and thence get on to the line and are killed, the company will not be responsible (Ricketts v. East, 4v., Docks and Ry. Co.).