Dr. R.P. Ghosh vs Bengal and North-Western Railway Co. Ltd.

Fazl Ali, J.—This is a second appeal arising out of a suit instituted by the appellant for the recovery of damages on account of injuries said to have been sustained by him in a fall on the platform at the Laheria Sarai railway station.

The plaintiff''s case was that on 16th January 1939 he went to the Laheria Sarai station to catch a train for Samastipur at 4-21 P.M. and as he was proceeding to board the train, his left foot "suddenly fell into a ditch" as a result of which he sustained a serious sprain which incapacitated him from pursuing his professional duties for over two weeks. He also alleged that the fall with the consequent injury to himself was directly caused by the negligence of the defendant railway company in not maintaining the platform in proper and fit condition and that he was entitled to a sum of Rs. 2000 as damages. The defendant railway company in resisting the suit contended firstly that there was no ditch on the platform and that the platform was in perfectly good order it being always kept in good order under the supervision of the engineering department; and, secondly, that the plaintiff did not fall on account of any ditch on the platform, but he had sustained his fall as he was, on account of his late arrival at the station, in a hurry to catch the train and that the injury which he had sustained was due to his own carelessness and negligence. The Munsif who tried the suit awarded a decree to the plaintiff for a sum of Rs. 1075. The learned Additional District Judge has however reversed the decision of the Munsif and dismissed the plaintiff''s suit holding in the first place that on the facts of the case the defendant railway company should be absolved from the charge of negligence and, secondly, that this was a case in which the plaintiff''s own negligence was the real, direct, and effective cause of the accident.

There can be no dispute with regard to those facts which have been concurrently found by the two Courts below. It has been found in the first place that there was a depression at a distance of only about one cubit from the edge of the verandah outside the booking-office and that this depression was as stated by the plaintiff about 3 inches deep within a diameter of 18 inches. Then again the defendant railway company had offered evidence to show that there had been a complete repair of the platform before the alleged accident, but both the Courts below have come to the conclusion that the case put forward by the railway company is not correct and the depression described by the plaintiff did exist. The Courts have also found that the plaintiff sustained the injury at the time of stepping down from the varandah on to the platform by reason of his left foot getting into the depression. The question which has to be considered by this, Court is whether the findings arrived at by the learned Additional District Judge as to there having been no negligence on the part of the defendant railway company and the accident being the direct result of the plaintiff''s own negligence, which have the appearance of findings of fact, can be disturbed in a second appeal. In coming to the finding that the defendant company should be absolved from the charge of negligence the learned Additional District Judge observed as follows:

It seems to me that they (the railway company) would be discharging their duty satisfactorily by maintaining their platform in a condition which conforms with the ordinarily accepted standards on highways and by ways frequented by the public.

Mr. P.R. Das who appears on behalf of the plaintiff, points out that the view taken by the learned Additional District Judge as summarized in the passage quoted by me is not correct in law. It has been pointed out by Clerk and Lindsell in their book on Torts in connexion with the law as to nuisances arising from non-repair of the highways that at common law the duty to repair the highways rested ordinarily upon the parish and for a breach of that duty the only remedy was an indictment of the inhabitants and no action for damage resulting from non-repair lay against either the inhabitants or their surveyor. The same immunity from action which attached to the surveyor at common law now attaches to local authorities to whom the duties of the surveyor are transferred by statute. Mr. P.R. Das has referred us also to Gibson v. Mayor of Preston. (1870) 5 Q.B. 218 in which it was held that an action for personal injuries sustained by one of the public owing to the non-repair of a highway, does not lie against a local board of health constituted under the Public Health Act.

The position is, however, different in regard to the liability of the railway company for not keeping their premises in a proper state of repair. Mr. Das has in this connexion referred us to Indermaur v. Dames (1866) 1 C.P. 274, in which the facts were these. Upon the premises of the defendant, a sugar-refiner, was a hole or shoot on a level with the floor, used for raising and lowering sugar to and from the different storeys of the building, and usual, necessary and proper in the way of the defendant''s business. Whilst in use, it was necessary and proper that this hole should be unfenced. When not in use, it was some-times necessary for the purpose of ventilation, that it should be open. The plaintiff, a journeyman gas-fitter in the employ of a patentee who had fixed a patent gas-regulator upon the defendant''s premises, for which he was to be paid, provided it effected a certain amount of saving in the consumption of gas, went upon the premises with his employer''s agent for the purpose of examining several burners, so as to test the new apparatus. Whilst thus engaged upon an upper floor of the building, the plaintiff, under circumstances as to which the evidence was conflicting, but accidentally, and, as the jury found, without any fault or negligence on his part, fell through the hole and was injured.

On these facts, it was held that inasmuch as the plaintiff was upon the premises on lawful business, in the course of fulfilling a contract in which he or his employer and the defendant both had an interest, and the hole or shoot was from its nature unreasonably dangerous to a person not usually employed upon the premises, but having a right to go there, the defendant was guilty of a breach of duty towards him in suffering the hole to be unfenced. In Norman v. G.W. Ry. Co. (1915) 1 K.B. 584 it was held that the duty of railway company towards persons resorting to their stations and yards in the ordinary course of business is similar to those of the occupier of private premises towards invitees resorting to such premises in the ordinary course of business as laid down in Indermaur v. Dames (1866) 1 C.P. 274. The duty of the railway in such a case is the duty to take reasonable care that their premises are reasonably safe for persons using them in ordinary and customary manner and with reasonable care.

These authorities clearly show that the analogy of the non-repair of the highway which seems to have greatly influenced the learned District Judge''s decision of the case was inept and misleading and the principle which he should have applied to the case is the principle laid down in Indermaur v. Dames (1866) 1 C.P. 274. In other words, the question which the learned District Judge should have asked himself was whether the depression in question on the platform was, to adopt the language used in that case, "unusually dangerous to a person not usually employed upon the premises but having a right to go there" and whether the defendant railway company was guilty of a breach of duty towards him in suffering the depression to remain in a dangerous condition. Mr. Das has strongly relied upon Shephard v. Midland Ry. Co. (1872) 25 L.T. 879 the facts of which were briefly these: At a railway station some water had frozen upon the platform. The cause of this was unexplained, but from the ice being nearly an inch thick, and extending nearly half way across the platform, it had the appearance of having been there some time. A passenger, who was waiting upon the platform the arrival of a train to be conveyed on his journey, not observing the ice, stepped upon it and fell, sustaining serious injury. Upon these facts, it was held that the defendants were guilty of actionable negligence in allowing the ice to remain upon the platform. Martin, B. in the course of his judgment observes as follows:

I am of opinion that there was evidence to go to the jury of negligence in the defendants. It strikes me that the railway servants ought to be on the alert during such weather to see that there is no ice upon the platform and to remove it or render it harmless if there. It is quite impossible to say that there was no evidence of negligence to go to the jury.

The learned Munsif, who tried the suit, was of the opinion that the defendant company was bound to keep and maintain the platform, specially that portion of it where the passengers gather in large numbers in thorough repair and if any depressions were 8 allowed to remain just in front of the booking-office verandah, it amounted to a breach of a. duty on the part of the railway company. The learned Additional District Judge has decided that there was no negligence on the part of the railway company without any reference to the site of the depression or to the circumstances on which the learned Munsif has laid great emphasis. He has also decided it on the analogy of a highway which, as I have already pointed out, does not apply to the present case. In my opinion, therefore, the finding of the learned Additional District. Judge is one which has not been arrived at in accordance with law.

The second finding also appears to me to suffer from a similar defect. The learned Judge, as I have already stated, has come to the conclusion that in the present case the plaintiff''s negligence was the direct and effective cause of the accident and he seems to have accepted the suggestion that the plaintiff was in a hurry to catch the train. Now, in my opinion, mere anxiety on the part of a passenger to catch a train could not amount to contributory negligence or careless, ness. The real question was whether the plaintiff had failed to use reasonable care while proceeding to catch the train. The learned Munsif who tried the suit came to the conclusion that the depression constituted a danger of which the plaintiff was wholly unaware and he gave certain reasons for arriving at that conclusion. In fact the learned Munsif went very minutely into the question of the number of tickets that were sold on that particular day for the train which the plaintiff was intending to board and after referring to the entire evidence on the subject came to the conclusion that there must have been a large number of passengers intending to board that train and it was not surprising that the plaintiff did not notice the ditch or depression before his left foot slipped into it. The learned Munsif was definite in his conclusion that the depression was at a most unusual place and the plaintiff never expected to find it there and he could not notice it owing to a large crowd of passengers being assembled there. The learned Additional District Judge has, however, not referred to any of these circumstances. He does not say that the passengers would ordinarily expect a depression at the place and he has also not dealt with the question whether in spite of the fact that the place was crowded, the plaintiff could be blamed for not noticing the depression or that he could be reasonably expected to take any extraordinary care in walking on the platform, if in fact he was not aware of the depression and could not notice it. The circumstances noticed by the Munsif should not, in my opinion, have been ignored or overlooked by the learned Additional District Judge when dealing with the case and as his judgment is one of reversal and as the finding which he has arrived at is in the nature of an inference from the facts and circumstances of the case, it seems to me that his failure to take into consideration |the very facts and circumstances upon which the findings of the Munsif were based amounts to such an error as would justify : this Court in interfering with his decision.

Mr. Bose who appears on behalf of the respondent has in support of the judgment of the learned District Judge referred us to the following cases: Fairman v. Perpetual Investment Building Society (1923) 1923 A.C. 74; Directors etc. of the Dublin Wicklow and Waxford v. Judith Slattery (1878) 3 A.C. 1155 and Davey v. The London and South Western Railway Co. (1884) 12 Q.B.D. 70. But the facts of these cases are easily distinguishable from those of the present case and I am unable to extract any principle of law from them which will be applicable to the present case.

I would, therefore, allow this appeal, set aside the judgment and the decree of the learned Additional District Judge and remand the case to him for disposal according to law. Cost will abide the result.

Varma, J.

I agree.