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Therefore the question is, whether the public body would in such a
matter as a Railway Company undertake themselves to do what
undoubtedly they might have the power of doing, but probably in their
discretion they might not attempt to do—meddle with the main line of
a Railway, so as to prevent trains running in an ordinary way, or take
any risk of that sort on their shoulders which might not only render
them liable in damages, but might certainly, if they did things which
caused the death of people, render them liable to be prosecuted for
manslaughter. I think probably the reasonable ground for the Council
is to say that if these things are not complied with we may do the work,
but we shall not do it, we shall call upon the Railway to do it, and if
they do not do it, take proceedings at law and compel them. Then the
Company said there is no authority—both sides agreed—there is no
authority about the matter at all; the question never seems to have been
raised. But I am indebted to my clerk, Mr. Withrington, for finding a
case which was not alluded to, where it appears that really the question
of whether or no the Nuisances Act applies in regard to Railways, has
been raised. It was raised in the case of the Great Western Railway v.
Bishop. It was heard in the Queen's Bench on the 1st June, 1872, and
it is reported in 41 Law Journal, New Series, at p. 120. The state of
the facts there was as follows:—The Great Western Railway had a
bridge over a public road and the railway bridge got into such a state of
disrepair or non-repair that when heavy rain occurred the bridge leaked,
and people passing under the bridge had the unpleasant sensation of
getting a stream of water on them through the bridge. They were
proceeded against under the Nuisances Act, and the Company took the
point, not at all that the Nuisances Act did not apply and that they were
not liable to be proceeded against under the Nuisances Act,—but that
the dripping of water as he passed under the bridge was not a nuisance
injurious to health, and the point was argued in the Queen's Bench upon
that, and upon that ground Lord Justice Cockburn said: 'I am of
opinion that this conviction cannot be upheld. I agree that it might be
very convenient if this summary mode of procedure were applied to such
a case, but that feeling must not influence us, unless we see clearly that
the matter complained of falls within this particular Act which speaks
throughout of matters injurious to health. I think that it was intended
by the Legislature to secure means for preventing the occurrence of such