R v Pittwood (1902) 19 TLR 37



The defendant was employed by a railway company to operate the gate at a level crossing across the track. He lifted the gate to allow a cart to pass across, but then failed to put it back down before going for his lunch break. During his absence, a horse and cart crossed the track through the open gate, and was hit by a passing train. Both the horse and cart driver were killed.

The defendant was thus convicted of manslaughter and subsequently applied for permission to appeal.


The main issue here was whether an omission (in this case the failure to close the gate) could constitute the actus reus for murder. A further question was whether it was possible for criminal liability to be based on a breach of a contractual duty


The court held that as the defendant had been under a contractual duty to close the gate, his omission to perform this obligation was capable of constituting the actus reus for murder. This was particularly so as the purpose of the defendant’s employment was for the protection of the public, and his employer was responsible for preventing accidents at the crossing. The ruling in R v Instan [1893] 1 QB 450, which was authority that breach of a contractual duty may ground criminal liability for an omission, was applied and upheld. In the circumstances, the duty had been breached with gross and criminal negligence. Permission to appeal the conviction was therefore refused.