Gupta, J.
1. On March 3, 1953 at 6-38 A. M. a man of about sixty trying to cross the railway tracks running along the eastern side of Barrackpore Station was knocked down by a passing engine and died instantaneously as a result of the shock. The deceased, Haramohan Ghose, who held a monthly railway ticket, was coming to renew it at Barrackpore Station from his village Dhaniapara which was to the northeast of the railway station. He came along a road that leads up to the railway lines to the east of Barrackpore Station and was trying to walk across the lines to reach the station when the accident took place. Struck by the right side bumper of the engine he fell on the gangway between two quad lines and died on the spot. His widow brought the instant suit claiming a decree for Rupees 15,000/- as damages for the death of her husband. The Court below dismissed the suit and aggrieved by the decision she has preferred this appeal. She was allowed to sue and also to prosecute this appeal in forma pauperis.
2. In the plaint it is claimed that the people of Dhaniapara and the neighbouring villages are compelled to cross therailway lines on foot, there being no over-bridge to the railway platform at the point where the village road ends. The plaintiff alleges that the engine that struck down her husband came with 'tremendous speed and without whistling' and attributes the accident to gross negligence and wilful default on the part of the driver of the engine. It is pointed out by the defendant Union of India in their written statement that though there was no over-bridge, there was a level crossing about 80 yards south of the station platform providing for safe passage across the railway lines. According to the defendant, Haramohan Ghose was a trespasser on the defendants' property, 'user of any other path across the railway lines' than through the level crossing being unauthorised and that by trying to cross the lines he had exposed himself to the risk of accident. It is denied in the written statement that the engine came upon the victim with 'tremendous speed' or without whistling.
3. It can hardly be disputed that Haramohan Ghose walking across the lines was a trespasser on the railway property. The fact that he held a monthly railway ticket which, it is said, he was going to renew, does not alter the position; though he had a right to renew the ticket he had no right to be on the railway lines. The witnesses for the plaintiff speak of the distance of the level crossing possibly seeking to provide some justification for the people of the villages on the north-eastern side of the railway lines who used to cross over to the railway station in the way Haramohan was trying to do. Apart from whether this would make any difference in the position, the evidence of these witnesses on this aspect seems to be entirely besides the point. According to P. W. 1 Arabinda Shome, the level crossing, referred to by the defendant, is about 3 or 4 miles away from Dhaniapara and the neighbouring villages. P. W. 2 Daguram Ghose states that the level crossing is about a mile and half away from the villages. The distance of the level crossing from the villages, however, is a matter wholly irrelevant in the present context. D. W. 2 Harendra Kumar Dutta, who was the Station-master of Barrackpore Station at the relevant time, states that the level crossing is less than 100 yards from the station platform. Ext. 4 is a map of Barrackpore Railway Station showing the site of occurrence and the surroundings, drawn to a scale of 80' to a mile; this sketch supports the evidence of D. W. 2 and the statement made in the written statement regarding the distance of the level crossing. Thus it is clear that from the point where the village road meets the railway lines, the distance of the level crossing is quite short.
4. It will be convenient to dispose of here an argument advanced on behalf of the appellant built on the provisions of Section 13 of the Indian Railways Act. The learned Advocate for the appellant referredto the admitted fact that there was no barrier or fencing at the point where the village road meets the railway lines. This omission, according to the learned Advocate, constituted a violation by the Railway Administration of the statutory duty enjoined by Section 13 and he specially drew our attention to Clause (c) of the section. The relevant part of the section on which reliance is placed is as follows:--
'The Central Government may require that, within a time to be specified in the requisition, or within such further time as it may appoint in this behalf,
(a) ......................
(b) ......................
(c) suitable gates, chains, bars, stiles or hand-rails be erected or renewed by a railway administration at places where a railway crosses a public road on the level;'
5. It is difficult to see how Section 13 Is of any assistance. The section only provides that on a requisition being made by the Central Government, the Railway Administration has to erect suitable gates etc. as provided in Clause (c) of the section. No liability arises unless there is a requisition by the Central Government. In this case it is not claimed that such a requisition had been made and the Railway Administration did not comply with it. The fact that there was no fencing or barrier at the spot does not, therefore, afford a ground of action.
6. The principles governing a case like this are not in doubt. On the principle that a person cannot derive advantage from his own wrong, a trespasser sustaining injury cannot recover damages if he had himself courted the accident, though the accident may have been partly due to the negligence of the owner of the land or bis servants or agents. The rule, however, is subject to the qualification that an act done in willful or wanton disregard of the personal safety even of a trespasser is not permissible. The House of Lords in Grand Trunk Rly. Co. of Canada v. Walter C. Barnett, 1911 AC 361, states the rule as follows:--
'The railway company was undoubtedly under a duty to the plaintiff not willfullyto injure him; they were not entitled, unnecessarily and knowingly, to increase thenormal risk by deliberately placing unexpected dangers in his way, but to say thatthey were liable to a trespasser for the negligence of their servants is to place themunder a duty to him of the same characteras that which they undertake to those whomthey carry forward. The general rule, therefore, is that a mantrespasses at his own risk.Again, even if he be a trespasser, a questionmay arise as to whether or not the injurywas due to some wilful act of the ownerof the land involving something worse thanthe absence of reasonable care.'
The House of Lords emphasised the distinction between willful or reckless disregard ofordinary humanity from a mere absence of reasonable care. The Bombay High Court in Ismail v. B. B. C. I. Rly., AIR 1932 Bom 452, following the same principle held that a railway company is not liable for damages to a trespasser for a mere error of judgment even if it amounts to negligence on the part of its servants and that the Company will be liable only if the servant acts in willful disregard of the safety of the trespasser. The Calcutta High Court in a case reported in AIR 1928 Gal 504 (B. N. Rly. Go. Ltd. v. Taraprosad Maity) while applying the same principle referred to certain early English decisions which took the view that extra care should be taken to avoid causing injury to the public if they are known to frequent or cross at a particular point though without any right. This, however, is not the statement of a new principle and the cases referred to in the Calcutta decision are only instances of application of the principle stated by the House of Lords to their respective facts.
7. The learned Advocate for the appellant referred to a decision of the Supreme Court in Cherubin Gregory v. State of Bihar. : [1964]4SCR199 , and drew our attention to the following passage in the judgment: 'A trespasser is not an outlaw, a caput lupinem. The mere fact that the person entering a land is a trespasser docs not entitle the owner or occupier to inflict on him personal injury by direct violence and the same principle would govern the infliction of injury by indirectly doing something on the land the effect of which he must know was likely to cause serious injury to the trespasser..... . . . . ........It is no doubt, true that the trespasser enters the property at his own risk and the occupier owes no duty to take any reasonable care for his protection, but at the same time the occupier is not entitled to do willfully acts such as setting a trap or a naked live wire of high voltage with the deliberate intention of causing harm to trespassers or in reckless disregard of the presence of the trespasser.'
8. The passage quoted does not indicate a departure from the rule stated by the House of Lords but is a restatement of the same principles.
9. The question for decision in this case therefore is whether on the evidence adduced by the parties, the death of Haramohan Ghose can be said to have been caused by gross negligence or willful default on the part of the driver of the railway engine. The plaintiff has examined two witnesses who claim to have seen the accident. None of them, however, states that the engine that knocked down Haramohan came with 'tremendous speed' as alleged in the plaint. P. W. 1, of course, says that the engine 'gave no whistle' and that it struck down Haramohan and went away. He says that the accident occurred when he was 10/12 cubits away from the spot. Fromhis evidence, we find it difficult to fix the position from where he saw the occurrence. According to him, he did not see the engine coming but saw it going away. This would seem to suggest that he was across the lines and the accident occurred behind him; but then he further says that at that time he also 'wanted to cross the railway line' which would indicate that he was following Haramohan when the accident took place. This inference seems to be more probable in view of another statement he makes that 'had I got there I must have warned Haramohan by raising an alarm but I did not get that time'. All this makes it difficult for us to rely on his testimony. His presence at the p1ace at that hour is also not sufficiently explained. According to him, he worked in a shop which was 10 or 15 minutes away from the spot and that his hour of duty was from 8-30 A. M. but he adds that he used to go to the shop 'earlier.' Even then it is difficult to see what he could have been doing there about 2 hours before his duty commenced. The evidence of the other alleged eye witness, P. W. 2 does not present such difficulties. He also says that the engine did not give any whistle. According to this witness, he was about 10 or 12 cubits behind when the engine struck down Haramohan. If the driver of the engine having seen Haramohan trying to cross the lines did not blow the whistle, it may be possible to argue that he was guilty of gross negligence or willful default. The driver of the engine and also the guard who was in the brake van attached to the engine have deposed as defendant's witnesses Nos. 4 and 5 respectively. The driver D. W. 4 describes the occurrence as follows:
'While I was crossing the Calcutta side level crossing of Barrackpore I blew the whistle of the en cine. I blew the whistle while I was entering the station area. While I was proceeding to Naihati leaving the station I saw two men coming from the right side. On seeing them I blew my whistle. The younger man who was ahead passed to a safe distance but the old man who was coming behind paid no need to it I thought that the old man would check himself but he actually did not check himself as a result he was knocked down and he fell on the space between up quad line and down quad line.'
D. W. 5, the guard, did not see the accident as he was inside the brake van at the time. He says that he heard the driver of the engine blowing his whistle while passing the Barrackpore station area. Considering the evidence of D. Ws. 4 and 5 carefully we find no reason why the account of the accident given by them should not be accented as true. On the evidence it is not possible to hold that the driver of the engine having seen the old man trying to cross the lines made no attempt to warn him off the tracks and deliberately struck him down.The learned Advocate for the appellant referred to the evidence of P. Ws. 1 and 2 to the effect that having knocked Haramohan down the engine went away without stopping at the place. Both D. Ws, 4 and 5 have said that the engine stopped near the north cabin of the Barrackpore railway station. The evidence of the driver is that having seen that the man was paying no heed to the warning whistle, he tried to slow down the engine but the movement of the engine cannot be stopped immediately. It was suggested that he should have attempted to stop the engine from a reasonable distance so as to avoid hitting the man on the lines. I have already referred to his evidence that he thought that the old man having heard the whistle would stop but did not. If the driver was wrong in anticipating that Haramohan would check himself, that would be in our opinion an error of judgment at the most for which no action would lie. It also appears from the evidence of D. W. 4 that the engine was moving at a speed of 20 miles per hour when the accident occurred. The evidence of D. W. 6 S. C. Das, Transportation Inspector, is that the permanent speed restriction at the Barrackpore up and down quad line was 30 miles due to sharp curves. The allegation that the engine was moving at tremendous speed, therefore, has no substance.
10. For the reasons stated above the appeal fails and is dismissed, but in the circumstances of the case without any order as to costs.
11. The appellant will pay the court-fee due on the memorandum of appeal.
12. Let a copy of this decree be forwarded to the Collector, 24 Parganas.
Amiya Kumak Mookerji, J.
13. I agree.