Kemp, J.
1. Plaintiff's suit is for damages sustained by his motor oar which on or about midnight on 3rd June 1915 was being driven from Panvel to Mumbra on the Poona-Bombay road and at he railway crossing near Mumbra, shown on the plan mark Ex. No. 1, was forced by the sudden appearance of an engine and trucks crossing the road to swerve into a heap of stones on the left of the road. The locality as well as the spot of the accident is clearly indicated on the plan which, therefore, renders it unnecessary to give any further description of the place. The defendants are contractors who were at this time carrying out the work for the G.I.P. Railway of removing the spoil from the tunnel shown on the left of the Poona-Bombay road and dumping it down on the bank at the down side of the Mumbra creek bridge. For this purpose, two lines marked on the plan in blue ink had been laid down by the Railway Company, the line on the Bombay side of this railway line being known as the main line and the other as the office line. The points for these lines were on the creek side of the road.
2. Plaintiff carries on business of running a motor car service between Panvel and Mumbra and his case is that on the night of the 3rd June 1915 his Simmons car was being driven with passengers along the Poona-Bombay road and as it approached close to the level crossing certain trucks which were on the creek side of the crossing suddenly began to move across the road with the result that the driver of the car had to swerve to his left to avoid a collision and ran into the heap of stones causing the damage complained of. Plaintiff suggests that the trucks were being pushed in front of an engine. Defendant's case is that plaintiff's driver was driving negligently and that the trucks referred to by the plaintiff were on the tunnel side of the road and the engine, which had dragged some trucks from the tunnel and uncoupled them, thus proceeded across the crossing to the points and on its return as it approached the crossing blew its whistle twice and stopped on the approach of the car. Defendants also say that plaintiff's driver was driving fast as the car approached the crossing and that if he was unable to pull up in time to avoid a collision that was due to the car carrying more passengers than it was licensed for. They also plead they took every precaution to avoid danger to traffio at the crossing and that plaintiff's driver was guilty of contributory negligence such as would disentitle plaintiff to recover damages.
3. That is a short summary of the contentions on each side. It may further be stated that the defendants were doing this work under a contract with the G.I.P. Railway under which the Railway Company supplied them with the lines, engines and trucks and it is admitted by Mr. Campbell, for the defendants, that these were then being used by the defendants for their work and were under their control. The particular work in question was an extension of the work which defendants had agreed to do for the Railway Company under an agreement of the 4th April, 1913, which has been put in and marked Ex. No. 3 in this case. The correspondence relating to this extension work has been put in as Ex. No. 4 and to my mind it clearly contemplates that this extended work was to be done under the same agreement Ex. No. 3. The correspondence, Ex. No. 4, merely states the rate for dumping the spoil from the tunnel with the addition of a clause that defendants are not to be liable for damage or loss of rolling stock through the sudden subsidence of the Bank and that the rate is to include the supply by the Railway Company of engine power and rolling stock. As the performance of this work would entail the engine and trucks crossing the level crossing it is only natural to suppose the same terms in the agreement, Ex. No. 3, regarding the precautions to be taken by defendants to guard the crossing were intended to be embodied in the agreement for the extra work. By Clause 7 of part I of the schedule to that agreement defendants agreed with the Railway Company to take proper precautions to safeguard the public by proper watching and lighting and the duty to the public that is thus cast upon a Railway Company of safeguarding persons using the highway over a Railway crossing was by the contract between the Railway Company and the defendants thrown upon the latter. This, however, could not relieve the Railway Company of responsibility to the public nor would it, in my opinion, so far as the public are concerned, entitle persons using the highway to sue the defendants for failure to perform the duty cast upon the Railway Company, there being no privity of contract between defendants and the plaintiff nor any duty from the defendants to the plaintiff in this respect.
4. So that so far as the omission to provide gates and proper lighting and observation at this crossing is concerned, the plaintiff, it seems to me, has no. right of action against the defendants. This, however, does not dispose of the suit, for it is admitted that the engine and rolling stock and the lines were at the time of the accident under the control of the defendants and it is immaterial in order to fix defendants with responsibility for negligence that the engine driver and porters engaged were paid by the Railway Company if at this time they were acting under the orders of and subject to, the control of the defendants : Donovan v. Laing, Wharton and Down Construction Syndicate [1893] 1 Q.B. 629; Rourke v. White Moss Colliery Co. (1877) 2 C.P.D. 205. So that whilst the plaintiff may have no right of action against the defendants for the omission to keep the level crossing properly guarded he may still have a right of action against them for the negligent act of the defendants' servants in the course of the user of the railway lines crossing the road. And I can conceive no stronger case in which care should be exercised by the driver of an engine than that in which he proposes to cross at midnight an unfenced level crossing laid across a public highway.
5. The precaution which the defendants were in the habit of taking when moving their engines and trucks across this public highway are detailed in their letter to the District Superintendent of Police dated the 24th June 1915 (Ex. E). They appear to me hopelessly inadequate. According to that letter no regular watchmen are appointed to guard the level crossing but at night time when the loco is approaching the crossing the train attendant goes ahead with a signal lamp and stands at the crossing until the engine is passed. Apparently the defendants themselves felt their precautions were somewhat insufficient as the letter goes on to state that except on very rare occasions the loco has not occasion to pass the crossing, twice from nightfall to daybreak. It comes to this that the only precaution that the defendants took to signal to the public that the engine was about to cross the road-apart, I suppose, from the usual procedure of blowing a whistle-was to send a man ahead with a lamp. But this, moreover, in the case of a crossing known to be open and without gates. The engine-driver states that there was a porter at the crossing at the time with a white light in his hand and that the engine had a red light on its right hand buffer and another on the rear of the tender. He admits, however, that the red lights were shaded at the sides and they would therefore be invisible to any one approaching the engine at right angles. They are indeed only intended for warning persons on the line of the approach of the engine. He says he blew his whistle when he reached the points and then again his danger whistle when he was 5 or 6 feet from the crossing and saw the car approaching. It seems to me that the latter blast could have had little effect under the circumstances to avoid the danger of a collision for it would have been sounded too close to the crossing to give a car near the crossing sufficient warning of its danger. The porter Ramsunder Ramdas says he was at the crossing itself with a white lamp and showed it. It is clear ho was actually on the crossing and not where he should have been, viz. some distance from it to warn approaching traffic.
6. The effect of the evidence of the fireman and the oilman is the same. If believed it all comes to this that a porter stood on the crossing and when he saw the car approaching showed a white light. Whilst the engine, admitted by the engine driver to be invisible on that dark night at any distance, blew its whistle once at the points and again a danger whistle five or six feet from the crossing. I disbelieve the evidence suggesting the car was approaching at a very fast rate. It was a dark night and no driver would rush at a railway crossing at a high rate of speed. I consider that even if the defendants' evidence is to be believed it shows that the precautions which the engine driver, porter, etc., took to warn traffic along the road that the engine was about to cross the highway were quite inadequate. They knew the crossing was an open one and that the engine was invisible except when very close and the blowing of a danger whistle five or six feet from the crossing and the showing of a white light on the crossing itself do not, in my opinion, show that proper warning was given to the car of the approach of the engine.
7. The plaintiffs driver says he had no warning until the trucks began to move across the line. It will be remembered the defendants' case is the engine and trucks were separated by the crossing at the time although in para 5 of the written statement it is stated the engine was dragging the trucks. The plaintiff's driver says the engine was pushing the trucks. It is difficult to decide which of these various versions is correct. In any event, on defendant's own evidence, there were trucks then close to the crossing which the plaintiff's driver saw and there was admittedly an engine moving until it reached the crossing itself and if the plaintiff's driver thought in the sudden realization of his danger that the trucks were being pushed by the engine it cannot be wondered at and does not to my mind affect the merits of plaintiff's case which is in effect that the manoeuvres of those in charge of the engine and trucks were such as to justify the step he took of swerving off the road.
8. I agree that he took the proper course and one that any other cautious driver would have taken under the circumstances. It was better to swerve off the road than to risk the chance of dashing into the engine or trucks if not able to pull up in time. He might have tried to pull up by putting on all his brakes: whether he could have succeeded in stopping the car to avoid an accident, if he had put on the brakes, I cannot tell, but I would say on the evidence probably not. And that he did one thing and not the other is no ground for suggesting that what he did was wrong and in any event a man suddenly confronted with imminent danger, as was the case here, cannot be expected to exercise the same careful discrimination as to the correct course to pursue that he otherwise should. The doctrine of contributory negligence has no application under the circumstances.
9. It has also been urged that some 200 yards up the road on either side of the crossing was a danger signpost warning cars approaching the crossing, but on a dark night that would be invisible to anyone unacquainted with the road, whilst as to persons who knew the road and the crossing like plaintiff's driver, it would make no difference having regard to any finding that the car was not approaching this crossing at a high rate of speed.
10. Naturally, most of the plaintiff's witnesses cannot testify to the facts immediately preceding the accident, as they were passengers in the car whose first intimation of the danger was the sudden swerving of the car off the road. The plaintiff's driver has not produced his license. It may be that he had not got it extended. It is improbable he had not got one as although the incident was reported to the police no steps seem to have been taken against the driver on account of anything wrong with his license. And, in any event, even if he had no license provided he drove carefully on this occasion, as I find he did, the mere absence of the license would not justify those acting under the defendants' control and orders from exercising any less care towards him than towards a driver who had a license.
11. The suit will proceed on the issue of damages.
[The suit ended in a consent order which awarded Rs. 3750 as damages to the defendant, but without prejudice to the right to appeal on the question of damages].