Chotelal v. G.I.P.Ry Co. .

1. The plaintiff-appellant Chotelal Varma is a Sub-Inspector of Police, who has sued the G.I.P Ry for damages amounting to Rs. 10,100 on account of injuries caused to him while he was travelling in a 2nd Class carriage from Jalamb to Malkapur. The lower Court has dismissed his suit, finding that there was contributory negligence on his part.

2. The facts as found by the lower Court are that the plaintiff was sitting with his elbow protruding from the carriage window when another train passed with a door swinging open, which struck the plaintiff's fore arm and caused the injuries for which damages are sought.

3. As the lower Court has found that there was negligence on the part of the railway company, the company has raised the question again, in answer to the appeal, and I propose to consider that point first. I have been referred to Bromley v. G.I.P.Ry Co. [1900] 24 Bom. 1 , 1 Bom. L.R 254 for the proposition that leaving a railway carriage door open is negligence on the part of the company, but that does not mean that the fact of an open door concludes the matter. In Dullabhji Sakhidas v. G.I.P.Ry Co. [1910] 34 Bom. 427 , 5 I.C 676 , 12 Bom. L.R 73, it has been laid down that the fact that a door is open on a moving train is evidence of negligence on the part of the company, but not conclusive proof. That a door was open is at any rate prima facie evidence against the company, and it rests on the company to prove that the door was not open owing to negligence on the part of its servants. In the present case the only evidence is that of the Guard, W.P Perrin (D.W 4), who says that after the train of which he was in charge left Biswa he exchanged signals on both sides with the driver and the brakesman and did not notice the door of any carriage on the offside open. He admits that it was dark at the time, and I cannot regard his evidence as sufficient proof that all due precaution was taken to see that the door was properly closed before the train left Biswa. I must hold that there was negligence on the part of the railway company when the train reached Nagpur, L.J, Rajput (D.W 5) the train examiner, found that the door which had caused the injury bad come off the top hinge, the middle hinge was a bit loose, but was still holding, and the third hinge was firm. Evidence has been given for the plaintiff to show that both the upper hinges had given way before the train left Malkapur. But I am unable to believe that evidence in view of what the train examiner has said. It is shown by the inspection note recorded by the train Court and by the evidence of Mr. Horsfield, Divisional Transportation Superintendent (D.W 6), that no greater danger arose from the fact that the open door was held by two hinges only out of three, and even if it be taken (a point by no means clear) that the hinges were damaged before the accident I do not think that the company is necessarily guilty of any greater negligence.

4. I now come to the question of contributory negligence on the part of the plaintiff. It is not now disputed that he did have his elbow outside the widow of the carriage. According to the evidence of two doctors, Dr. John and Colonel Tarr, who judged from the nature of the injuries caused, his elbow must have been protruding about 4 inches. According to Mr. Horsfield it must have been at least 5 inches or else no injuries would have been caused. The exact distance to which the elbow protruded is, however, of little or no importance. In Dullabhji Sakhidas v. G.I.P.Ry Co. [1910] 34 Bom. 427 , 5 I.C 676 , 12 Bom. L.R 73 it has been held that a railway company is not liable for the injuries caused to any part of a passenger which was outside the carriage in which he was travelling. It is pointed out on behalf of the plaintiff that in Jehangir Muncherji v. B.B & G.I.Ry Co. [1913] 37 Bom. 575 , 19 I.C 485 , 15 Bom. L.R 252 the Court found itself unable to follow the rigid and inflexible rule of law laid down in the earlier case, but I do not find that, in effect, any other rule was followed the decision being given against the plaintiff on the ground that he was guilty of gross carelessness, because being engrossed in reading he failed to pull in his elbow when another train was passing. I am unable to appreciate this reasoning. It seems to me that the plaintiff in that case would have been equally, if not more, negligent if he failed to pull in his elbow when he did realize that another train was passing, and that in effect he was found guilty of contributory negligence, merely because he had his elbow outside the window: I have been referred to Pollock's Law of Torts, Edn. 11, p. 441 whore the general rule as stated by Baron Alderson is quoted:

“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent or reasonable man would not do”.

5. It is urged that in the present case the plaintiff was occupying a position such as is ordinarily occupied by passengers in Indian Railway trains; he was doing a common everyday act performed by many persons in perfect safety and not negligent. This point of view has been considered in Dullabhji Sakhidas v. G.I.P.Ry Co. [1910] 34 Bom. 427 , 5 I.C 676 , 12 Bom. L.R 73 and rejected for reasons which seem to me sound. Apart from the fact that there was a notice warning all passengers not to lean out of the windows (and as has been said in Dullabhji Sakhidas v. G.I.P.Ry Co. [1910] 34 Bom. 427 , 5 I.C 676 , 12 Bom. L.R 73, no distinction can be fairly drawn to the company's disadvantage between leaning out and putting arms or heads out) there is an obvious duty on railway passengers to avoid running risk by protruding any part of their persons from the windows.

6. It is urged, however, that although the plaintiff may have been negligent, that fact alone does not disentitle him from recovering damages in this connexion reference has been made to Halsbury's Laws of England, Vol. 21, p. 446. It is there said in para. 759:

“In order that a plea of contributory negligence may be successful, it must be shown either that there was negligence on the part of the plaintiff which contributed to the accident and that the defendant could not by using ordinary care have avoided the accident, or that notwithstanding the defendant's negligence, the plaintiff could, by exercising ordinary care, have avoided the accident. Where, therefore, the defendant is negligent and the plaintiff is alleged to have been guilty of contributory negligence, the test to be applied is whether the defendant's negligence was the real direct and effective cause of the misfortune. When the acts of negligence alleged are not contemporaneous this test in general results in throwing the responsibility on that party who last had an opportunity of avoiding by the exercise of ordinary care or skill, the affect of the negligence of the other, and who failed to do so. If negligence on the part of the defendant is proved and contributory negligence by the plaintiff is at best only a matter of doubt, the defendant is liable.”

7. Here it is said that the plaintiff's contributory negligence is only a matter of doubt but there I cannot agree, because the accident could never have happened if his elbow had not been outside the carriage window. That was the direct cause of the accident and applying the test stated in the above quotation for cases in which the acts of negligence are not contemporaneous, it is clear that it was the plaintiff who had the last opportunity of avoiding the accident and that he failed to do so. I agree with the lower Court's finding that the plaintiff has been guilty of contributory negligence and that his suit was rightly dismissed.

K.N/R.K

8. Appeal dismissed.