RAILWAY--Continued.

enacts that where a line of railway crosses "any turnpike road or
public highway," and the road is carried over the railway by means
of a bridge, such bridge and the approaches thereto "shall be executed
and at all times thereafter maintained at the expense of the [rail-
way] company." Held that the words "public highway" applied only
to roads which were public de jure. Corporation of Glasgow v. Cale-
donian Railway Co., Nov. 29, 1907, p. 244.

Construction and Maintenance--Questions with Local Authorities-Road
-Bridge over Railway-Caledonian Railway (Additional Powers) Act,
1872, secs. 4, 26.

2. The Caledonian Railway Act, 1872, sec. 4, enacts that the Company
may make and maintain" certain railways, and "may execute the
other works and operations hereinafter mentioned." With reference
to one of the railways authorised, which crossed a certain road, sec.
26 enacts:-"In constructing railway No. 2 the following provisions
shall be binding on the Company, who shall construct the works
hereinafter specified in manner hereinafter directed

(3) the
road
shall be carried over the railway by a bridge not less
than 40 feet wide." The railway company by virtue of the powers
conferred on them by secs. 4 and 26 of the foregoing special Act,
constructed railway No. 2, and, where it crossed the road, carried
the road over the railway by means of a bridge. Held that since the
section of the special Act providing for the construction of the bridge
did not specify that the road upon it was to be maintained by the
railway company, no such duty lay upon it under the provisions of
that Act. Corporation of Glasgow v. Caledonian Railway Co., Nov.
29, 1907, p. 244.

Construction and Maintenance-

Questions with Third Parties-Road
forming "part of any railway"-Burgh Police (Scotland) Act, 1892,
sec. 4 (31).

3. An unformed road in a burgh, 40 feet in width, was bounded on one
side by a line of railway from which it was separated by a wall. The
solum of the road ex adverso of the railway to the extent of 30 feet
of its width was the property of the railway company, who had
acquired it by voluntary disposition under a power to purchase land
for extraordinary purposes. Over the road there existed a public
right of way for traffic of every description. Held that the road was
not "part of a railway" in the sense of sec. 4 (31) of the Burgh
Police (Scotland) Act, 1892, but was a private street within the
meaning of that Act. Glasgow and South-Western Railway Co. v.
Hutchison, Feb. 19, 1908, p. 587.

Construction and Maintenance Questions between Companies-Siding-
Renewal of Siding-Identity of Subject-Running Powers-Caledonian
and General Terminus Railways Amalgamation Act, 1865, sec. 15.
4. The Caledonian and General Terminus Railways Amalgamation Act,
1865, conferred on certain railway companies running powers over
the sidings of the railways vested by the Act in the Caledonian
Railway, "constructed at the time of the commencement of this Act,
or any renewals thereof." Circumstances connected with the con-
struction of a siding in which held that the siding in question was a
renewal of a siding in existence at the commencement of the Act.
North British Railway Co. v. Caledonian Railway Co., Oct. 18, 1907,
p. 16.

Traffic and Carriage-Passengers-Injuries to Passengers-Failure of
railway servants to close carriage doors before setting train in motion.
5. Averments in an action of damages for personal injuries brought against
a railway company by a passenger who, after alighting from a train,
had been knocked down by an open carriage door as the train was leav-

REPARATION-Continued.

Slander-Privilege-Judicial Slander-Averments regarding co-defender
in divorce action-Malice-Sufficiency of averments of malice.
15. In an action of divorce for adultery brought by a husband against his
wife, the wife's alleged paramour was called as co-defender. The
husband founded on a written confession by the wife admitting that
she had misconducted herself with the co-defender, and averred :—
"In consequence of the information elicited by the pursuer from the
defender, the pursuer has made inquiries and has ascertained, and
now avers, that" upon certain dates "the defender misconducted her-
self with the co-defender, and that the co-defender is the father of
the child which was born to the defender." The Lord Ordinary
granted decree of divorce against the wife, but assoilzied the co-defen-
der with expenses. Thereafter the co-defender brought an action
against the husband for reparation for the slander contained in the
statements in the divorce action. He averred that these statements
were made falsely, calumniously, and maliciously, and without pro-
bable or any cause. That no inquiries had been made by the husband
or on his behalf relative to the co-defender's conduct, and that no
evidence was attempted to be led at the trial against him. That the
wife had been induced by the husband to write the alleged confession,
and that the husband knew that the confession was untrue. Held
that this being a case of judicial slander it was necessary for the
pursuer to set forth facts and circumstances from which malice could
be inferred, that the pursuer had failed to set forth facts from which
it could be inferred that the defender's statements in his action of
divorce, which were relevant, were made from a malicious motive,
and therefore that the present action was irrelevant, and the defen-
der was entitled to absolvitor. M. v. H., July 11, 1908, p. 1130.
Negligence-Duty to Public-Responsibility of Town-Council-River
adjoining Public Park-Duty to fence-Child.

16. A father brought an action against the Corporation of Glasgow for
damages for the death of his infant son, who had been drowned in
the River Kelvin while playing in one of the public parks adjoining
the river. The pursuer averred that at the place the bank of the
river, which was unfenced, was worn away; that the river was liable
to sudden floods, during which its flow became swift and violent, and
its depth increased from 1 to 4 feet; that the accident occurred
during one of these floods; that the river was thus a danger to the
public, and especially to children; that it was the duty of the defen-
ders to have had it fenced; and that the accident was due to their
negligence in failing to perform this duty. Held that there was no
relevant averment of fault on the part of the defenders, and action
dismissed. Stevenson v. Corporation of Glasgow, July 2, 1908,
p. 1034.

Negligence-Duty to Public-Horses shying at motor-car left unattended

-Breach of statutory provisions—Roads and Bridges (Scotland) Act,
1878, sec. 123, incorporating the General Turnpike Act, 1831, sec. 96.
17. The driver of a motor-car drew up his car at the side of the road,
leaving ample room for traffic to pass, stopped the engine, and left
the car there unattended, while he paid a visit of fifteen minutes to a
house near by. While he was away the horses of a passing wagonette
shied at the motor-car, and got out of control, and damage was done
to the wagonette and to the horses. The owner of the wagonette
having raised an action of damages against the owner of the motor-
car, the Sheriff-substitute held that the driver of the car was in breach
of section 96 of the General Turnpike Act, 1831, in leaving the car
unattended, and that the accident had resulted therefrom, and
awarded damages. In an appeal, the Court assoilzied the defender,

REPARATION-Continued.

on the ground that the accident had not resulted from the car being
left unattended, but through the shying of the horses and the inability
of the driver to control them. Macfarlane v. Colam, Nov. 1, 1907,
p. 56.

Negligence-Railway-Injury to passenger-Failure of railway servants
to close carriage doors before setting train in motion.

18. In an action of damages for personal injuries brought against a railway
company by a passenger who, after alighting from a train, had been
knocked down by an open carriage door as the train was leaving the
station, the pursuer averred that "the said accident to the pursuer was
due to the fault and negligence of defenders' servants, for whom defen-
ders are responsible. When said train was stopped at said platform
there were no porters or officials on the platform to see that the doors of
the carriages were closed before the train was restarted. It is the duty
of defenders, and is the invariable practice of railway companies, to
close the doors of compartments before a train is allowed to leave the
station, but this the defenders and their servants culpably and negligently
failed to do on the occasion of this accident to pursuer. The defenders and
their said servants were also negligent in respect that they set said train
in motion without closing said door." He also averred that the defen-
ders' servants were negligent in failing to have the lamps at the station
lighted, and that the station was so dark that the pursuer could not see
whether the doors were closed or not. Held that the pursuer had averred
facts from which a jury might infer negligence. Toal v. North British
Railway Co., May 26, 1908, (H. L.) p. 29.

Negligence Railway-Injury to passenger-Crowd on Station Platform.
19. A married woman with an infant in her arms was standing with her
husband at Waverley Station, Edinburgh, on a Saturday evening in
September, waiting for additional carriages to be added to a train
which was to leave a quarter of an hour later. Before the carriages
were in position, an orderly crowd of passengers collecting behind
the woman and pressing forward on the arrival of the carriages, the
woman was pushed off the platform upon the carriages and was
injured. In an action for damages raised by the woman against the
Railway Company, in which the above facts were proved, held that
the pursuer's injuries were not due to negligence on the part of the
Railway Company, and defenders assoilzied. M'Callum v. North
British Railway Co., Jan. 14, 1908, p. 415.
Measure of Damages-Solatium-Death of husband and father-Admis
sion of liability-Relevancy of considering (1) sufferings of deceased,
(2) grossness of negligence of defenders.

20. In an action of damages against a railway company, at the instance
of the widow and children of a passenger who had died from injuries
received in a railway accident, the defenders admitted liability for
the injuries of the deceased. The pursuers proposed an issue in
ordinary form, whether the deceased had been injured "through the
fault of the defenders, to the loss, injury, and damage of the pur-
suers.' The defenders objected to this form of issue, and proposed
that the issue should contain a recital of the admission of liability,
with the sole question,- "What is the amount of the loss, injury,
and damage sustained by the pursuers?" The Court, following the
established practice in such cases, approved of the issue in ordinary
form; but were of opinion that, in estimating the amount of damages,
including solatium, due to the pursuers, the sufferings of the deceased
would be a relevant consideration, but not the grossness of the fault
of the defenders. Black v. North British Railway Co., Jan. 18, 1908,
p. 444.

21. Observed (per the Lord President), that the English doctrine of

RAILWAY-Continued.

ing the station, upon which held that the pursuer had averred facts
from which a jury might infer negligence. Toal v. North British
Railway Co., May 26, 1908, (H. L.) p. 29.

Traffic and Carriage-Passengers-Injuries to Passengers-Crowd on
Station Platform.

6. Circumstances in which held that the injuries of a woman who had
been pushed off a railway platform by a crowd were not due to negli-
gence on the part of the Railway Company. M'Callum v. North
British Railway Co., Jan. 14, 1908, p. 415.

Traffic and Carriage-Passengers-Railways Clauses Consolidation (Scot-
land) Act, 1845, sec. 96-Travelling without paying fare-Intent to
avoid payment.

7. A workman, who had travelled by a workman's train, attempted to
leave the station where he alighted without giving up a ticket (his
intention being to defraud the railway company), but was prevented
from doing so, and thereupon produced from his pocket and tendered
a workman's ticket valid and available for the journey. Workmen's
tickets are not dated, and can be used at any time. Held that the
workman had not been guilty of travelling "without having previ-
ously paid his fare and with intent to avoid payment thereof" in the
sense of the Railways Clauses Consolidation (Scotland) Act, 1845,
sec. 96. Caledonian Railway Co. v. Roper, May 13, 1908, (J.) p. 69.
Traffic and Carriage-Goods-Agreements with Truders-Owner of cattle
undertaking risk of carriage if sent by route specified-Damage sustained
on different route-Railway and Canal Traffic Act, 1854, sec. 7—
Limitation of Company's Liability.

8. A railway company agreed with the owner of three head of cattle
consigned by rail from Maxton Station to Alnwick, via Kelso, for
exhibition at a cattle show at Alnwick, that if they were not sold
they should be taken back to Maxton at half fare, provided the
owner consigned them by the same route as that by which they had
been sent, and undertook the risk of their conveyance. Between
Kelso and Alnwick there were two railway routes equally convenient,
one by Wooler, the other by Tweedmouth. The Railway Company
sent the cattle to Alnwick by the Wooler route. The cattle were
not sold at the show, and the owner's agent in sending them back
from Alnwick Station signed a consignment note bearing that they
were sent for carriage back to Maxton "by the same route as on the
journey here, at the reduced rate," "and in consideration of your
charging such reduced rate," "the undersigned agrees to free and
relieve you of all liability" for loss or damage, unless caused by
wilful misconduct on the part of their servants. The Railway Com-
pany chose to send the cattle back by the Tweedmouth route and
they were destroyed by fire at Tweedmouth Junction. In an action
brought by the owner of the cattle against the Railway Company for
£800 as the value of the cattle the defenders maintained (1) that
they were not liable, as they had sent them back by the route con-
tracted for, viz., by Kelso; (2) that the stipulation that they should
be returned by the same route was a stipulation solely for their own
benefit, and conferred no right on the sender of the cattle; (3) that
in any view their liability was restricted to £15 for each animal, in
respect that no declaration of an excess value was made on behalf of
the owner in terms of the Railway and Canal Traffic Act, 1854,
sec. 7. Held (1) that the Railway Company had broken the contract,
and could not found on the indemnity clause therein, but (2) that
their liability for the loss of the cattle was limited to £15 per animal.
Lord Polwarth v. North British Railway Co., Nov. 15, 1907, p. 1275.
See Stamp, 2-4-Valuation Acts, 1.

REFORMATORY. See Justiciary Cases, 26, 27.

REPARATION. Capacity to commit wrong-Company.

1. Limited liability company held liable for verbal slander uttered by
their servant in the course of his employment and for the benefit of
the company. Finburgh v. Moss' Empires, Limited, June 9, 1908,
p. 928.

Liability of master for wrongful act of servant-Wrongous Detention.
2. A lady who had been a guest at a hydropathic establishment, brought
an action of damages against the proprietors of the Hydropathic, in
which she averred that when she was at the Hydropathic she went,
at the request of the defenders' manager, to his private room; that
she there found a Mr and Mrs R., who were fellow guests; that Mrs
R. had conceived an ill-will against the pursuer, and that the defen-
ders' manager knew this; that Mr and Mrs R. placed themselves
against the door to prevent the pursuer from leaving the room; that
the manager said that he would not allow the pursuer to leave the
room until she apologised to Mrs R. for slamming a door in her
face "a thing the pursuer had never done"--and that the manager
aided and abetted Mr and Mrs R. in preventing the pursuer from
leaving the room for about fifteen minutes. The defenders pleaded
that the action was irrelevant in respect that the pursuer's averments
shewed that the manager was not, on the occasion in question, acting
within the scope of his employment. Held that the pursuer's aver-
ments were relevant. Mackenzie v. Cluny Hill Hydropathic Co.,
Limited, Nov. 23, 1907, p. 200.

Liability of master for slander uttered by servant.

3. Held that an employer is liable for a verbal slander uttered by his
servant in the course of the servant's employment and for the benefit
of the master. Finburgh v. Moss' Empires, Limited, June 9, 1908,
p. 928.

4. In an action of damages for slander brought by a married woman
against a limited liability company as the owners of a theatre, the
pursuer averred that while she was witnessing a performance in the
defenders' theatre the defenders' servants falsely stated, within the
hearing of her husband and others, that she was a notorious prosti-
tute who had been thrown out of the theatre two weeks previously
for being drunk and disorderly, and said that she must leave the
theatre; and that the statements complained of were made by the
defenders' servants in the course of their service and for the defen-
ders' benefit. The pursuer referred for its terms to a bye-law, made
under statutory authority, founded on by the defenders, which was
applicable to the theatre, and which provided that the licensed
manager should not permit men or women of bad fame to enter the
theatre. Held that the pursuer's averments were relevant. Fin-
burgh v. Moss' Empires, Limited, June 9, 1908, p. 928.

5. In an action of damages for slander brought by a married man
against a limited liability company, as the owners of a theatre, the
pursuer averred that while he and his wife were witnessing a per-
formance in the defenders' theatre the under-manager falsely stated
that the pursuer's wife was a bad character and must leave the
theatre, that on the pursuer explaining that the lady was his wife,
the under-manager replied that "he had heard that story before,'
and that the under-manager subsequently falsely stated to the manager
of the theatre that the pursuer's wife was a notorious prostitute who
had two weeks previously been thrown out of the theatre for being
drunk and disorderly. The pursuer further averred that the state-
ments complained of were made of and concerning him, and repre-
sented that he was a person of loose and immoral habits and character,