Odger's English Common Law

436 TORTS GENERALLY.
Thus, where a railway company was bound by statute to keep closed
(except on necessary occasions) the gates leading from an adjoining highway
on to the railway, so as to prevent cattle or horses passing along the
road from straying on to the line, and the company failed in this duty, it
was held liable for damage done to certain horses which had strayed from
the highway on to the railway and were killed. 1
Again, by the Factory Acts a duty to fence all dangerous machinery is
cast upon every factory owner, and ah action of tort lies against him if one
of his employees is injured through any neglect to fence. 2 But he will have
to prove that at the time of the accident the machinery was in motion for
some "manufacturing process "
; otherwise the Factory Acts will not apply.*
But the right to sue for the breach of a public statutory
duty is subject to two important qualifications :
(a) "An action will not lie for the infringement of a right
created by statute, where another specific remedy for infringement
is provided by the same statute
" 4
; for no such right of
action existed before the statute was passed, and the statute
prescribes a remedy to which the newly created right of
action will be restricted. " Where an Act creates an obliga-
tion and enforces the performance in a specified manner," it
generally holds true "that performance cannot be enforced in
any other manner." 6
No action lies against a sanitary authority for neglecting to remove
snow from the streets in accordance with section 29 of the Public Health
Act, 1891, 6 and this though the plaintiff has suffered actual damage,
because the statute provides that for such neglect " the sanitary authority
shall be liable to a fine not exceeding twenty pounds." '
(b) "Where, moreover, a statutory duty is created with the
object of preventing a mischief of a particular kind and a
person, by reason of the neglect of such duty by another,
suffers a loss of a different kind, he is not entitled to maintain
an action in respect of such loss.
1 Fawcett v. The York and, North Midland Ry. Co. (1851), 16 Q. B. 610 ; and
Bee Matson v. Baird (1878), 3 App. Cas. 1082.
2 Groves v. Lord Wimborne, [1898] 2 Q. B. 402 ; and see Britton v. Great
Western Cotton Co. (1872), L. R. 7 Ex. 130, and 1 Edw. VII. c. 22, s. 10.
8 Coe v. Piatt (1852), 7 Exch. 923.
* Per cur. in Stevens v. Jeaeocke (1848), 11 Q. B. at p. 741 ; and see Manchester,
fyc. Ry. Co. v. Denaby Main Colliery Co. (1885), 11 App. Cas. 97 ; Rhymney
Ry. Co. v. Rhymney Iron Co. (1890), 25 Q. B. D. 146.
6 Per cur. in Doe d. Bishop of Rochester v. Bridges (1831), 1 B. & Ad. at p. 859.
6 64 & 65 Vict. c. 76.
1 Saunders v. Holborn District Board of Works, [1896] 1 Q. B. 64 ; and see
Atkinson v. Newcastle Waterworks Co. (1877), 2 Ex. D. 441.
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