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Vishnu Digambar Paluskar v. B.B. & C.I.Ry.

Bombay High Court

Jun 26, 1923

Judgment

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Judgment Summary — Crump, J.

Factual and Procedural Background

The opinion arises from an action brought by a plaintiff who sustained injury when a ladder, placed in a rack in a railway carriage, caused harm. The facts as narrated in the judgment include evidence from the carriage inspector Cantervischer, testimony from the plaintiff and his medical witness Dr. Sathe, and evidence from a defendants' witness Delany. The court considered whether the ladder had been placed in the rack by a person in the defendants' employ or by some other person (for example a passenger or a passenger's servant), and whether the defendants were negligent in the circumstances.

Procedurally, the court recorded findings on liability, contributory negligence and damages and ultimately dismissed the suit. The judgment records that the suit was dismissed with costs.

Legal Issues Presented

Whether the evidence permits an inference that the defendants were negligent in relation to the ladder found in the rack (i.e., on which of the two hypotheses—ladder placed by defendant's servant or by a third person—the balance of probability lies).
Whether the doctrine of res ipsa loquitur applies so that negligence can be inferred from the mere fact of the accident.
Whether the railway company had a duty to ensure that no dangerous article (such as the ladder) remained in the rack when the train started, and whether the precautions actually taken by the company met that duty.
Whether the plaintiff was guilty of contributory negligence for failing to inspect or secure the space above his berth.
Assessment of damages (expenses, pain and suffering, loss of income) in the event the defendants were held liable.

Arguments of the Parties

The opinion provides only a limited account of the parties' specific pleaded arguments. The judge does, however, describe the matters urged and relied upon by the parties and their witnesses:

Plaintiff's Position

The plaintiff alleged injury caused by a ladder in the rack of the carriage and sought damages for expenses, pain and suffering and loss of income.
The plaintiff advanced that the presence of the ladder and the resulting injury demonstrated negligence on the part of the defendants (including a contention that the train was allowed to start with a dangerous article in the rack).
Medical evidence (Dr. Sathe) was adduced to describe the nature of the plaintiff's injury and the period of concussion.

Defendants' Position

Defendants contended that the ladder could have been placed in the rack by a passenger, passenger's servant or other third party and that it was not shown that a person in defendants' employ had placed it there.
Defendants relied on evidence (notably from Carriage Inspector Cantervischer) describing routine inspections (on arrival the day before and when trains are made up) and the practice of removing ladders found in racks and returning them to under the centre berth, as measures amounting to reasonable care.
Defendants pleaded contributory negligence, asserting that the plaintiff should have observed and secured items above his berth (a plea the court found to be without substance on the evidence).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Scott v. London Dock Co.	That whether negligence may be inferred depends on the "nature and character of the accident."	The court quoted Blackburn, J.'s observation to frame the inquiry whether this accident's nature permits an inference of negligence.
Metropolitan Railway Co. v. Jackson	Distinction between the judge's role in deciding whether negligence can be inferred and the jury's role in deciding whether negligence ought to be inferred.	The court referred to this case to explain that in the present matter both questions fell to the judge and considered whether a reasonable man would infer negligence.
Cotton v. Wood	Support for the proposition that when the balance of probabilities is even, the party relying on negligence must prove it (onus on affirmant).	The court invoked the principle to conclude that where two hypotheses were equally probable, plaintiff must fail absent affirmative proof of negligence.
McKenzie v. Chilliwack Corporation (Privy Council)	Illustration of application of the maxim "ei qui affirmant, non ei qui negat incumbit probatio" in cases where cause of accident is unknown.	Used as an illustrative authority reinforcing that the burden lies on the party who affirms negligence where cause is not shown.
East Indian Railway Company v. Kalidas Mukerji	On a railway company's duty and the question whether it must prove negative knowledge of dangerous items introduced without servants' knowledge.	The court relied on the Privy Council's view that it was not incumbent on the railway to prove it did not know the nature of goods introduced without its servants' knowledge; analogously, it was not incumbent on defendants to prove they did not know a ladder was in the rack.
Gee v. Metropolitan Ry. Co.	Statement of the railway's duty framed as requiring reasonable care that passengers are not exposed to undue danger in train management.	The court cited the principle to evaluate whether the inspections and precautions described by the defendants amounted to reasonable care.
Sorabji H. Batlivala v. Jamshedji M. Wadia	Framework for assessing damages under three heads: expenses; pain and suffering; loss of income.	The court applied this tripartite structure when considering what damages would have been appropriate if defendants were liable.

Court's Reasoning and Analysis

The court's analysis follows a step-by-step approach:

Two competing hypotheses were identified: (a) the ladder was placed in the rack by a person in the defendants' employ, or (b) it was placed there by a passenger or other third person. The court surveyed the evidence and concluded it could not say one hypothesis was more likely than the other.
The court considered whether res ipsa loquitur applies — i.e., whether negligence can be inferred from the mere occurrence of the accident. Relying on authorities, the judge held that the question depends on the nature and character of the accident and on whether a reasonable man would infer negligence.
Because the ladder could be and commonly is moved by passengers or their servants, the object was not exclusively within the defendants' control. The court therefore found that cases turning on exclusive control were inapplicable.
Given that the balance between the two hypotheses was even, the court applied the principle that the onus rests on the party alleging negligence to prove it. In the absence of affirmative proof that the defendants or their servants placed the ladder in the rack, negligence could not be established on the evidence.
The court examined whether the railway company had discharged its duty of reasonable care. It accepted Cantervischer's evidence describing routine inspections (on arrival the previous day and again when trains are made up before arrival at the passenger platform) and the practice of removing ladders and returning them to their proper place under the centre berth, and concluded these measures constituted reasonable care in the circumstances.
The court rejected the proposition that the company was required to keep a continuous patrol to prevent passengers from placing dangerous articles in racks, finding such an expectation unreasonable and unnecessary in light of the precautions described.
On contributory negligence, the court found the plea unpersuasive. The judge noted that the plaintiff was almost blind and that there was no evidence he had opportunity or obligation to make the minute inspection defendants' plea required; defendants' witness Delany had not observed the ladder in the rack.
Although the court ultimately dismissed the suit for want of proof of defendants' negligence, it nonetheless assessed what damages would have been appropriate if liability had been established: Rs. 200 for expenses, Rs. 1,000 for pain and suffering, and approximately Rs. 5,000 for three months' loss of income, aggregating to about Rs. 6,200.

Holding and Implications

SUIT DISMISSED

Holding (core ruling): The plaintiff's claim was dismissed because the evidence did not permit the court to infer negligence on the part of the defendants. The court found that two competing explanations for the presence of the ladder were equally plausible and that the plaintiff had not discharged the burden of affirmative proof of negligence. The court also found that the defendants had taken reasonable precautions (routine inspections) and that the ladder was not an item exclusively under defendants' control.

Implications and direct effects:

Because negligence was not established, no damages were awarded to the plaintiff.
The court assessed, hypothetically, the damages that would have been awarded had liability been proven (total estimated at Rs. 6,200), but this remained academic because of the dismissal.
The plea of contributory negligence was not upheld on the evidence.
The judgment indicates that no new legal principle or broad precedent was laid down beyond the application of established principles (res ipsa loquitur, onus of proof where the balance of hypotheses is even, and reasonableness of railway precautions). The decision's effect was confined to the resolution of the parties' dispute on the facts before the court.

Disposition recorded in the opinion: "Suit dismissed with costs, including costs reserved if any." The judgment also records "Suit dismissed" at the conclusion.

Show all summary ...

Crump, J.:— (His Lordship stated facts and proceeded to decide as below):

2. For the purposes of this case there are two alternatives. Either the person who placed the ladder in the rack was in defendants' employ, or he was not. Is it possible in the circumstances to say that one hypothesis is more likely than the other? I am satisfied on the evidence of the Carriage Inspector Cantervischer that these ladders are intended to be kept under the berths. That is consonant with common sense. No responsible person would place an article of that kind in a rack such as we have here. I am also satisfied that the Company's servants would ordinarily remove a ladder from the rack if they found it there. It is possible that they might place it there temporarily while sweeping or washing the carriage, and that it might escape notice. On the other hand the train stands at the passenger platform for an hour and a half before it starts and any passenger can enter a compartment-Luggage is brought in by all kinds of people, passengers, their servants or the coolies employed by them, and a ladder under a berth is no doubt frequently much in the way when luggage has to be disposed of. I do not think I am bound to affect “a cloistered seclusion” about these matters. Every one who travels on Indian Railways knows quite well that these ladders are frequently placed by passengers or their servants, in the lavatories or on unoccupied berths in order to make room for luggage. In the present case it is impossible to exclude the possibility that some passenger entered the carriage and placed the ladder in the rack, and then transferred himself to another compartment on finding that the lower berths were occupied, or because he decided to join a friend elsewhere. Such things often happen. In my opinion no analysis of the evidence can carry the matter further and I am unable to say that of the two hypotheses which I have propounded one is more likely than the other. This being so can it be said that negligence on the part of the defendants is made out? Clearly not: and unless the burden lies on the defendants to disprove negligence plaintiff must fail. It is no doubt urged that defendants were in any case negligent in allowing the train to start with the ladder in the rack. I will deal with that point later.

3. A considerable number of cases have been cited and to these I have referred, and to other cases also where the question of negligence has been discussed. Reference has also been made to Beyen's work on Negligence, 3rd Edition, and to the article on “Negligence” in Halsbury's Laws of England, Volume XXI, para 751. The question resolves itself into this—is this a case where the doctrine res ipsa loquitur is applicable? In other words, “do the facts speak for themselves” that is to say, can negligence be inferred from the fact of the accident? Upon this point Blackburn, J., in Scott v. London Dock Co.(1) remarked: “The question depends on the nature and character of the accident.” Now it is impossible to find two cases which are identical in point of fact—none at least has been discovered in which the facts are identical with those before me. Many of them are complicated by a consideration whether a case ought or ought not to be left to a jury, and it is mainly with reference to this question that the maxim res ipsa loquitur is important. The question “can negligence be inferred?” is for the Judge. The question “ought negligence to be inferred?” is for the jury (see Metropolitan Railway Co. v. Jackson(2) or as is said in Pollock on Torts, 11th Edition, page 453, foot-note): “Strictly the jurors have to say not whether, negligence ought to be inferred, but whether, as reasonable men, they do infer it.” Here both questions are for the Judge. Can negligence be inferred from the nature and character of this accident and would a reasonable man infer it. Practically no advantage is gained by separating the two questions.

4. Generally speaking, therefore, the reported cases are not of much assistance but there is one principle which may be stated:

“In some cases of res ipsa loquitur, the accident may be of snob a nature as that negligence may be presumed from the mere occurrence of it. But when the balance is even, the onus is on the party who relies on the negligence of the other to turn the scale.”

5. This statement of the law is cited by Reven as a correct exposition (see p. 126, foot-note 2) and indeed it appears to be so. Here is an accident. There are two hypotheses on which it can be explained. On the one defendant is liable: on the other he is not. Is it not clear that if, as here, the balance is even plaintiff must fail in the absence of affirmative proof of negligence? see Cotton v. Wood(3). Lord Halsbury's maxim applies ei qui affirmant, non ei qui negat incumbit probatio. An illustration of the application of this maxim to a case where the cause of an accident was unknown will be found in the judgment of the Judicial Committee of the Privy Council in the McKenzie v. Chilliwack Corporation(4).

6. It must be pointed out here that this is not one of that class of cases where injury is caused by a thing which was exclusively in the defendants' or their servants' control. Here, as has been said, other persons can and constantly do move these ladders in railway compartments. Therefore all those cases which turn on that peculiar state of facts are here inapplicable.

7. In East Indian Railway Company v. Kalidas Mukerji(5) the essential facts are not dissimilar to those which we have herd. The accident was caused by an explosion of some tire-works which were introduced into the compartment without the knowledge of the defendant company's servants. There was a duty to prevent dangerous goods being carried. Here there was a duty to prevent dangerous articles being placed where they might fall upon passengers. But in that case their Lordships of the Privy Council say that it was not incumbent on the Railway Company to prove that they did not know the nature of the goods. Is it incumbent on them to prove that they did not know that the ladder was in the rack when the train started? I think not.

8. This brings me to the second ground on which it is suggested that defendants are guily of negligence—that is to say, that it was their duty to see that there was no dangerous article in the rack when the train started. The case last cited is instructive as to the duty of a Railway Company towards its passengers. The duty is to exercise due care and skill in carrying passengers, or as Blackburn, J., says: “A Railway Company are not bound to carry passengers safely and securely, at all events, but to take all reasonable care that in the management of their trains the passenger is not exposed to undue danger:” Gee v. Metropolitan Ry. Co.(6); Now the precautions taken by the company, as explained by Cantervischer whose evidence was given in a fair and straightforward manner, are as follows. The main line trains are inspected on arrival the day before. They are again inspected when they are made up shortly before the train is brought into the passenger platform, and any ladders which are found in the rack or elsewhere are removed, and restored to their proper place under the centre berth. This is, I think, reasonable care. It can hardly be expected that the defendant company should employ a kind of patrol to see that no dangerous articles are placed in the rack before the train starts. Indeed in this case it would be difficult to exclude the hypothesis that the ladder was placed in the rack after the train started. It is not my experience that passengers observe minutely all that passes in a fairly full compartment and it would be hardly in accordance with human nature to expect that any one would admit that he placed the ladder in the rack.

9. The result, if I am right, must be that plaintiff's claim must fail whatever sympathy may be felt for him. As, however, the evidence has been fully recorded I propose to record my findings on the remaining issues also.

10. I may be wrong, but I find it difficult to treat the plea of contributory negligence seriously. It really comes to this that a party who lies down in a berth in a railway carriage is bound to make a minute examination of that which is over his head, and if he detects any object above him to assure himself that it is securely fastened in the place where it happens to be. The evidence of the plaintiff, his appearance, his actions left no doubt on my mind that he is, as he says, almost blind. But apart from that, where is the contributory negligence? Even defendants' witness Delany never saw that the ladder was in the rack. The plea requires no further examination.

11. There remains one point only and that is the question of damages. As in the case of Sorabji H. Batlivala v. Jamshedji M. Wadia(7) there are three items to be considered. (1) Expenses, (2) Fain and suffering, (3) Loss of income.

12. On the first head plaintiff claims Rs. 200 and though there is no satisfactory evidence of the exact amount the sum might be accepted as reasonable. On the second head the amount claimed is Rs. 25,000 which is beyond reason. Plaintiff's witness Dr. Sathe says there was a cat on plaintiff's forehead 1¼ inch (long) 1¼ inch (deep) 1⅛ inch (wide) and for a day and a half there were signs of concussion. I fear that plaintiff's own account of his sufferings is grossly exaggerated. In the case I have cited Rs. 10,000 was allowed and the most cursory perusal of the report shows how very desperate were the plaintiff's injuries in that case. Rs. 1,000 would be a very liberal allowance under this head. As to the third head, loss of income, the total claimed is Rs. 29,800 in two items. Judging from Dr. Sathe's evidence it might be fair to allow three months' income. There is no satisfactory proof of any permanent injury. It appears that there was a considerable falling off in the number of students in the institution which may be ascribed to plaintiff's illness. No accurate estimate is possible. As to the amount of plaintiff's income his evidence is not borne out by the accounts which he has produced and his prospective estimate of what he might have made at Indore is pure guess work. Plaintiff's net income for the first eleven months of 1920 is shown in the statement prepared by defendants' witness. It has not been criticized in any way. In round figures the total is Rs. 15,000, or say Rs. 16,500 for the year. There is no doubt something to be added from the sale of books. In view of the marked rise in plaintiff's earnings it would not be unreasonable to estimate that he would have made a profit of Rs. 20,000 in 1921. On that basis plaintiff's loss of income for three months may be estimated at Rs. 5,000. The total damages, were defendants held to be liable, I should estimate at Rs. 6,200.

13. Suit dismissed with costs, including costs reserved if any.

14. Suit dismissed.