Mangalmurti, J.:— This is plaintiffs first appeal against the decree in civil suit No. 5-B of 1943 passed by the Subordinate Judge, First Class, Bilaspur, on 2th April 1944 whereby the learned Judge dismissed his suit for damages amounting to Rs. 5,500 being the price of his elephant which died as a result of collision on 8th August 1942 with light engine no. 495 which was being driven by defendant 2 A.V Lake from Bijuri railway station to Manendragarh on the Annuppur-Chirmiri section of the Bengal Nagpur Railway.

2. The plaintiff alleged—

“That defendant 2 while driving the light engine between mile 32/2 and 32/6 between Bijuri and Manendragarh intentionally, and deliberately or at any rite negligently, and disregarding the warning and protest of the mahout, struck the plaintiff's elephant chained in the front legs and who had strayed on the railway tract from its grazing ground and was at the time in the cutting with high vertically steep rocks on either side. Defendant 2 having struck, pushed him some distance and the elephant falling down ran the engine over his left front and hind legs and caused him severe injuries and ultimately and pushed (sic) gave painful moans (chiggkar) and shivered and passed.”

3. The defendants denied that defendant 2 drove the engine rashly or negligently or that he struck deliberately or intentionally the elephant of the plaintiff which had strayed on the railway track. According to the defendant's story, the elephant without attendant was noticed obstructing the railway track between Manendragarh and Bijuri with the result that 180-Up-passenger train had to be detained on the way for about 15 minutes. The guard of that train on arrival at Bijuri reported about the incident and stated that the animal had uprooted two telegraph posts causing dislocation of through communication between those stations and beyond. Consequently the 361 Down goods train which had already arrived at Bijuri could not proceed to Minendragarh for want of line clear and its driver (defendant 2) had to go in the light engine towards Manendragarh with caution order and line clear enquiry message to see if the line was clear of the obstruction reported. Defendant 2 proceeded cautiously sounding the whistle at regular intervals and while approaching the curve at mile 32/6 he saw the elephant coming round the corner in the cutting about 3 telegraph posts ahead. He began to blow the whistle and opened the waste water cooks thinking that this would scare away the animal, making it turn round and return the other way. The elephant, however, charged the engine, At this defendant 2 shut of the steam and applied vacuum brake, but before the engine could be stopped dead, the animal collided against the engine, damaging its front legs. The elephant then fell down struck against the engine buffer and fell across the track blocking the line. It later pulled itself up and was seen standing across the track, thus compelling the engine to go back to Bijuri. The defendants contended that the movements of the elephant showed that it had turned rogue. Thus the most important question for decision in this case is if the elephant was on the railway track and was struck and pushed by the engine as alleged by the plaintiff appellant or whether it charged the engine and collided with it as alleged by the defendants.

4. Each side examined two eye-witnesses to prove its case. The trial Court believed the defendants' witnesses and disbelieved the plaintiffs, and the learned counsel for the appellant contends that the trial Court was wrong in doing so as the defendants' story that the elephant charged the engine is unnatural and absurd. The learned counsel contended that as the elephant is a timid animal as stated by E.A Smythies in his book “Big Game Shooting, In Nepal” at p. 48 it would have got frightened at the discharge of steam whistling of the engine and would have moved away from danger (p. 53 of the book “Wild Life Illustrated,” Odhams Press Limited Long Acre London, W.C 2). The remarks at p. 63 of the “Wild Life Illustrated” however, apply to wild animals and not to same ones. The learned counsel for the appellant wanted me to infer from this material that an elephant would not charge under any circumstances—at least not under the circumstances alleged by the defendants. It is, however, not denied during the argument that at least one telegraph post was uprooted or damaged and the 180 Up passenger train was held up for 15 minutes. In view of this and even otherwise the learned counsel has not placed sufficient material before me to justify such an inference. On the other hand that the elephants charge sometimes would be clear from the following remarks of G.H Evans in his book “Elephants and Their Diseases” at p. 59:

“When charging the head is elevated and the trunk curled up, so it is necessary to fire at least a foot lower than when the head is held in the natural position.”

5. It is not unknown that elephants are sometimes taken in crowded processions where band and other musical instruments are played loudly: and there are stories that elephants were used in wars specially to break open the doors of forts in ancient times. I am making use of these stories not for the purpose of proving anything positive but only to say why I think that the material placed before me by the learned counsel for the appellant is not sufficient to Justify the inference he wants me to draw.

6. (After discussion of the evidence the judgment proceeds as follows): I fully agree with the trial Court that no reliance can be placed on the evidence of these witnesses of the plaintiff and that the elephant charged the engine and collided with it and received the injuries as a result of the fall and collision as stated by the witnesses for the defendants.

7. The learned counsel for the appellant then contended that the driver Lake (defendant 2) was guilty of negligence by opening the waste water cocks and discharging the steam to scare away the animal. According to him this must have frightened the animal and it must have charged the engine. The plaintiff did not plead these facts constituting negligence in the plaint and I am of the opinion that I cannot consider that case at this stage as the defendants had no opportunity of meeting it. Had such an allegation been made in the plaint, the defendants would have had an opportunity of meeting it. Moreover had the animal got frightened, it is unlikely that it would have gone towards the engine; it would have gone away from it. There is no material on record to show that it could not go in any other direction except that of the engine though it was frightened. The learned counsel for the appellant relied upon The Manchester South Junction and Altrigncham Railway Co. v. Fullarton, (1863) 143 E.R 364 : (14 C.B (N.S) 53), but it is not applicable to the present case as it was a case of the railway crossing a highway and both sides were using the road as of right. It was held that the railway company did not use their railway with that attention to the rights and the safety of the Queen's subjects which under the circumstances they were bound to exercise. This would be clear from the following extract from the judgment of Earle, C.J:

“It appears that the plaintiff's horses were using the road as of right, and that the company were also as of right exercising the power given them, by their act, of crossing the highway: and, if there had been nothing to show that they were not exercising their rights in the ordinary way and with due and reasonable care, the company undoubtedly would not be liable for the misfortune which has happened. But I am of opinion that the evidence abundantly shows that the company by their servants exercised their right of crossing the highway in an inconvenient and improper manner. Whilst near the gate which separates the railway from the road, the driver blew off the steam from the mud cocks in front of the engine, so that the plaintiff's horses became enveloped therein and frightened, and so became unmanageable. It is clear that the company have not used their railway with that attention to the rights and the safety of the Queen's subjects which under the circumstances they were bound to exercise. The decision of the learned Judge must therefore be affirmed.”

8. In the present case the elephant was not on the railway track as of right, and this is the point of difference between Fullarton's case ((1863) 143 E.R 364 : 14 C.B (N.S) 53) and the present case.

9. As there was no rashness or negligence on the part of the defendants the trial Court rightly dismissed the plaintiff's suit. This appeal fails and is hereby dismissed with costs.

Kaushalendra Rao, J.:— I have had the advantage of reading the judgment proposed by my brother, Mangalmurti. I agree with his conclusion that the appeal must be dismissed.

10. On the argument about negligence based on the opening of the waste water cocks by the driver my learned brother prefers to rest his decision on the failure of the appellant-plaintiff to specifically allege this as a ground of his action. But the learned counsel for the appellant contended that even if the version of facts as disclosed by the defendants be accepted, the appellant was entitled to succeed. I do not think that in a case of this nature I should stress the structure of pleadings too strictly. Critically examined the contention of the appellant in no way improves his case. I give my reasons below.

11. It was not established that there was any duty on the part of the railway to fence the line, The animal had no right to be where it was found injured. In short the animal was a trespasser. I cannot accept the evidence of Manrakhan (P.W 4) that the mahut was attending on the animal. Had it been so, the unfortunate accident would probably have been averted.

12. The question then is what was the duty of the railway to a trespasser on its track. On this point the law is not left in doubt after the decision of their Lordships of the Privy Council in Grand Trunk Railway of Canada v. Barnett, (1911) A.C 361 : (80 L.J.P.C 117). In that case the plaintiff was injured by a collision which took place on the defendants' railway line. It was held that the plaintiff could not recover because he was a trespasser on the train. Lord Robson in giving the decision of the Board that the defendants were not liable observed:

“The railway company wig 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. The authorities do not justify the imposition of any such obligation in such circumstances.”

13. The duty that an occupier has towards a trespasser as distinguished from a licensee or an invites is the lowest recognised by law. That duty is not to do a wilful act “in reckless disregard of ordinary humanity”. The general rule is a man “trespasses at his own risk.” That the position is the same with regard to trespassing animals was made dear in Ponting v. Noakes, (1894) 2 Q.B 281 at p. 283 : (68 L.J.Q.B 549):

“The hurt which the animal received was due to its wrongful intrusion. It had no right to be there, and its owner, therefore, had no right to complain. The true test in such a case is pointed out by Gibbs C.J, in Deane v. Clayton, (1817) 129 E.R 196 : (1 Moore 203), in a judgment which was emphatically approved by the Court of Exchequer in Jordin v. Crump, (1811) 151 E.R 1256 : (8 M. & W. 783), though on the facts proved in Deane v. Clayton, (1817) 129 E.R 196 : (1 Moore 203) the Court were equally divided as to what judgment should be entered. We must ask, he says, ‘in each case whether the man or animal which suffered had, or had not, a right to be where he was when he received the hurt.’ It he had not, then (unless, indeed, the element of intention to injure, as in William Bird v. Holbrook, (1828) 130 E.R 911 : (6 L.J.P.C (O.S) 146), or of nuisance, as in Barnes v. Ward, (1850) 137 E.R 945 : (19 L.J.C.P 195), is present) no action is maintainable.”

14. In the present case, there was no question of any nuisance. Neither the running of the engine on their own track nor, in the particular circumstances of the case, the opening of the water cocks and letting out the steam constituted a nuisance on the part of the railway company.

15. On the evidence in the case I cannot hold that there was any deliberate intent on the part of defendant 2 to cause any injury to the animal. The blowing of the whistle by a driver of the engine is the moat natural act when he sees a man or an animal on the track. The driver might very well have thought that the animal would move away it he opened the waste water cooks and let out the steam. There was nothing to indicate that his act was not bona fide. The driver was alive to the dangerous possibility of a derailment consequent on a collision. That was why he slowed down. He abut off the steam and applied the brakes. He might have even averted the collision but for the fact that the animal contrary to expectation charged. Having regard to all these circumstances it cannot be said that the driver acted recklessly or in wanton disregard of the safety of the animal. After all, we have to remember that a railway engine moves on a fixed trick. The driver of an engine is entitled to expect that on a warning given a man or an animal would move away from the track at the sight of an approaching engine rather than charge against it. So, the blowing of the whistle end the opening of the waste water cooks to discharge the steam was in the circumstances of the case but a warning intended to scare away the animal. What the driver did cannot therefore be regarded as an act of negligent. Even granting for the nonce that the driver was negligent in doing what he did, it was no more than an error of judgment. A trespasser cannot complain of an error of judgment on the part of an occupier: see Ismail v. B.B & C.I Railway, A.I.R (19) 1932 Bom. 452 : (140 I.C 249). As my learned brother pointed out the case relied on by the appellant cannot really help him. In the instant case the question of negligence arises not between parties who were both present at the place of occurrence in the exercise of equal rights inter se such as would be the case at a public level crossing but between parties one of whom was the owner of the place and the other was not there as of right. The duty which a person owes to another to show reasonable care not to cause harm is not absolute but relative.

16. Appeal dismissed.