Beaumount, C.J:— This is an appeal from a decision of Kania, J., and, as the learned Judge says in his judgment, the result of his decision is unfortunate, because the plaintiff unquestionably met with an accident on the defendant's railway, which resulted in the loss of both his legs. He sued the railway company for damages in respect of that injury. The learned Judge held that the plaintiff was not entitled to recover.

2. The accident in question occurred on 18th June 1927. The learned Judge has dealt with the evidence in detail, and I can state quite shortly the material facts. There is a certain amount of doubt on the evidence as to the exact order in which different events occurred, and as to the precise movements of the engine which caused the accident. But I think substantially here is no doubt about the facts. The plaintiff on the day in question came to the goods yard of the Dohad station of the defendants' railway. The Dohad station is situate on the south of the railway line, and the goods yard is situate on the north. There are five lines passing through the station. The plaintiff-appellant lives to the north of the station and in going to the goods-yard, he had not to cross the lines.

3. He wanted apparently to book certain trucks for the carriage of his timber and he spoke to a clerk in the goods yard, who referred him to the Station Master. He therefore desired to cross the railway line in order to get to the Station Master's office on the south side. In order to cross the line with safety he would have had to go some 300 to 400 yards to the west and cross by a level crossing there being at this station no overhead bridge or underground passage. It is not suggested that the clerk or any other official of the railway company invited the plaintiff to go across the railway lines in order to get to the Station Master's office. But there is a good deal of evidence that merchants who used this station were in the habit of crossing the lines of the railway company at the station and without going to the level crossing. There is no evidence that anybody has been stopped crossing the railway lines and there is no notice prohibiting people from crossing the railway lines. We are asked therefore on behalf of the plaintiff, to infer a license from the railway company to him to cross the lines. On the other hand the company contend that there was no such license and that the appellant was a mere trespasser. In many cases it is of great importance to determine whether a person who is on the land of another is a licensee or a trespasser. If he is a trespasser generally speaking the occupier of the land owes him no duty. If he is a licensee, the occupier does owe a duty not to set anything in the nature of a trap on the land and to warn the licensee against any concealed danger. In the present case it does not really matter in my view whether the plaintiff was a trespasser or a licensee. The danger which he met was in no sense concealed. Moreover if the plaintiff be regarded as licensee, the license can only be inferred and I think we should have to infer no more than a qualified license, that is to say, a license qualified by the nature of the locus in quo. Putting it at the highest I think that we could only infer that the plaintiff was licensed to cross the railway lines, either when there were no trains in the vicinity or else at his own risk as to trains. It is impossible to infer against the railway company a license to members of the public to walk across the railway lines on the terms that they should be protected from any passing or moving trains.

4. Now the plaintiff did in fact on the day in question proceed to cross these lines. When he was part of the way across, according to his own evidence, a down train—No. 19 Down—came into the station from the west, and drew up at the station platform. On that train was attached at the rear a saloon for a Mr. Soper, who was one of the official's of the railway company, and the evidence of the railway officials is that saloon was to be detached from this train and in place of it the saloon of Mr. Eveleigh, another official of the railway company, was to be attached to the rear of the train, and in order to carry out that operation a shunting engine was in use. That engine was standing at the time when the down train arrived, opposite the station, facing towards the west with Mr. Eveleigh's saloon attached; as soon as it got a signal that engine was to move off towards the west and carry out the transfer of these saloons. Some time after the 19 down train stopped, this shunting engine did move forward, and ran into the plaintiff with the result that the plaintiff was seriously injured, and both his legs had to be amputated. The plaintiff's own version given a day after the accident, and also on a subsequent occasion, is that he was crossing the line thinking about his own affairs, that he waited for the down train to go into the station that he then continued to cross the lines when be felt a push from behind and found himself under the shunting engine when he became unconscious. Whether the shunting engine had moved from its original position to a position nearer the western end of the platform near which the accident occurred before it finally moved off and collided with the plaintiff is, I think, somewhat doubtful. But I think the evidence is that this shunting engine had moved a short distance only from the place where the accident occurred, and was travelling very slowly.

5. Now it is perfectly obvious in the first place that the plaintiff himself must have been guilty of gross negligence. He was crossing these railway lines in broad daylight, the shunting engine was visible, there was nothing whatever to obstruct iris view of it, the down train being on the far side of the engine to himself. If a man in a normal state crosses a railway line in broad daylight, and collides with an engine which is moving, and moving, according to the evidence, quite slowly, it is to my mind perfectly obvious that he is guilty of very gross negligence. Moreover, if the plaintiff was originally in the position of a licensee he was acting in breach of the terms of the license, which relegates him to the position of a trespasser. Mr. Vachha however on behalf of the plaintiff, says that, even assuming that the plaintiff was guilty of negligence and was a trespasser, nevertheless the defendant company are liable if they could, by the exercise of reasonable care, have avoided the accident; and in support of that proposition he refers to the case of Cooper v. Swadling (1). I do not question that general proposition of law in its application to the case of two persons on a public thoroughfare, but, in my opinion, it does not apply in its entirety to the case of a trespasser. In applying the law it is necessary to consider the evidence of the driver of the engine in question. He was examined on commission, and therefore the learned Judge had not the advantage of seeing him in the witness box. His evidence is not very easy to follow, but I think it comes to this: that he sounded his whistle before moving forward, that he saw the plaintiff some forty or fifty paces away crossing the line, whether he sounded his whistle again on seeing the plaintiff is doubtful, but when he got near to the plaintiff he shut off steam, and then immediately on collision with the plaintiff he put on his brakes and stopped very promptly within a foot or two. Mr. Vachha puts his case in this way: He says that the engine driver admits that he saw the plaintiff, he must have appreciated that the plaintiff was not thinking about where he was going and might run or walk into the engine, and that the engine driver should at once have been applied his brakes and stopped the engine, or at any rate he should have taken steps, whether by shouting or sounding his whistle more loudly, to have the plaintiff's attention attracted. There is no doubt a certain amount of force in that contention. I think it is true that the engine driver might have avoided the accident if he had adopted a rather different course—if he had stopped the engine at once on seeing the plaintiff. But on that assumption the further question arises, whether the defendant company are liable. The plaintiff, as I have said, must be regarded as a trespasser, and in my judgment the law is that a railway company is not liable to a trespasser for a mere error of judgment, even amounting to negligence, on the part of its servant which causes damage to the trespasser. If the railway company is liable in such circumstances then their liability to a trespasser is practically on the same footing as their liability to an invitee—an ordinary passenger on the railway who has paid the company for their services. I think that the decision of the Privy Council in Grand Trunk Railway of Canada v. Barnett (2) is an authority for the proposition I have stated. In that case a trespasser on the railway line had been injured by a negligent act on the part of the railway company's servants and their Lordships say (p. 369):

“The railway company was undoubtedly under a duty to the plaintiff not wilfully to injure him; they were not entitled, unnecessarily and knowingly, to increase the normal risk by deliberately placing unexpected dangers in his way, but to say that they were liable to a trespasser for the negligence of their servants is to place them under a duty to him of the same character as that which they undertake to those whom they carry for reward.”

6. I think that principle of law applies in this case. If I thought that the evidence showed that the engine driver had acted in wilful disregard of the safety of the plaintiff, I should say that the company are liable. If, for instance, the engine driver had seen the plaintiff walking just in front of the engine, and had run into him without making any attempt to avoid an accident, I think the company would have been liable. But I think the evidence shows that the driver did nothing of the sort. He saw the plaintiff not on the actual line on which the engine was, but in the vicinity. He no doubt thought that the plaintiff would appreciate in time that the engine was there and keep out of the way, and very possibly he committed an error of judgment in putting on his brakes a fraction of a second too late. But, in my opinion, an error of that sort is not negligence for which the railway company are liable. Any Court must naturally regret having to dismiss the claim of a person in the position of the plaintiff, who has been very seriously injured in an accident on the company's line. But we have to determine this question on legal principles, and, in my opinion, the plaintiff is not entitled to recover damages. The appeal must therefore be dismissed.

Mirza, J.:— With great regret I have come to the same conclusion. The evidence in this case, in my opinion, would justify the finding that the plaintiff was a trespasser on the railway line at the time the accident occurred.

7. According to the statement he made to the police jamadar on 19th June 1927, the plaintiff had been to the goods office of the defendant railway company on the previous day with the object of consigning two bags of onions. He made no mention on this occasion that he had gone there also with the object of hiring two trucks for his timber. He made a mention of this for the first time in a further statement she made before the Sub-Inspector of Police on 15th July. In this first statement the plaintiff had stated that his object in crossing the railway lines was to meet the passenger train by which some of his people were expected to arrive from Godhra. In his evidence the plaintiff stated that he wanted to hire two waggons from the railway company and was referred by the goods clerk Balaram to the Station Master. Balaram has not been called as a witness in this case. Even aocepting the plaintiff's story that he was referred by Balaram to the Station Master, it would not follow that Balaram invited the plaintiff to go across the lines to the station opposite to see the Station Master. The evidence shows that the plaintiff was aware that the Station Master would not transact goods fou siness until after the departure of the passenger train which was then due to arrive. If the plaintiff had business to transact at the railway station, his proper course was to have gone there by using the level crossing which was not very far from the station. As he preferred to cross the railway lines at a place where no level crossing was provided it must be taken that he did so at his own risk. It was clearly his duty to have been on the look out to see that there was no danger on the way. There was no express or implied promise on the part of the railway company that while the plaintiff was crossing the railway lines in the manner he did that there would be no trains or engines passing over those lines to endanger his safety. The plaintiff was guilty of negligence on his part in not looking out to see that the lines were clear of passing engines and trains before he attempted to cross them. He admitted in his statement before the jamadar as well as later before the Sub-Inspector of Police that he was engrossed in his own thoughts and was not on the look-out when the engine knocked him down. Had the plaintiff been on the look out he could not have failed to see the engine with the saloon attached to it moving in the direction where he intended to cross the lines. He could then have easily avoided the accident.

8. The plaintiff's negligence however would not absolve the railway company from liability if it could be shown that the accident was not averted owing to a wilful default on the part of the engine driver. The evidence on the point is that after the signal was given or in anticipation of the signal being given the engine driver had started the engine and was proceeding towards the railway junction. This was a construction engine which was not capable of developing a speed of more than ten to twelve miles per hour and was going on this occasion at a very slow pace of about three miles per hour. While it was so proceeding the engine driver noticed the plaintiff on the railway lines. His evidence is that on noticing the plaintiff he blew his whistle. I am not inclined to believe this evidence although the learned trial Judge has believed it, for had the whistle been blown, it would have been noticed and remembered by some of the witnesses who were close by and have since given evidence in this case. Even the two persons who were inside the engine at this time have not deposed to having heard the whistle being blown at the time of the accident. The attention of Messrs Soper and Eveliegh was called to the accident soon after it occurred, but they do not remember having heard any whistle about the time of the accident. Failure to blow the whistle on this occasion would amount, in my opinion, to an error of judgment on the part of the engine driver and cannot be regarded in the circumstances of this case as being a wilful default on his part. The engine driver might reasonably have supposed that the plaintiff would be vigilant enough while crossing the lines and the noise of the engine would be a sufficient warning to him to keep out of the engine's track. The engine was stopped immediately after the accident and first aid rendered. The burden of proof, in my opinion, was upon the plaintiff to show that there had been wilful default on the part of the railway company's servants by which this accident was not averted. The plaintiff having failed to show that such was the case the defendants are not liable to him for the damage he has suffered in consequence of this accident. The judgment of the trial Court must be affirmed and this appeal dismissed.

S.N/R.K

9. Appeal dismissed.