P.K. Tare, J.
1. This appeal is by the plaintiff against the dismissal of his claim by Sbri R. S. Agarwala, First Additional District Judge, Jabalpur in Civil Suit No. 11-B of 1951 decided on 30-1-1954.
2. The appellant, a truck driver, while driving his truck on the Katni-Kymore-Jukehi road on 14-2-1949 at about 5 p. m. collided against a shunting train at a level crossing, which has no gates and no gateman. As a result of the accident, the truck was damaged and the appellant's legs were injured, incapacitating him for the rest of his life. He,therefore, claimed damages at Rs. 18,180/- as follows:
Rs. 16,900/- Loss of income for 20 years atthe average rate of Rs. 67/8/-per month.Rs. 700/- hospital charges.Rs. 500/- mental worry and physical pain.
The negligence, according to the appellant, consisted in driving the train at high speed in disregard of fie safety of the passers-by using the level crossing and in not having a gate or a gateman at the level crossing.
3. The respondent in defence denied negligence on its part. It was alleged that the railway siding is for the benefit of the cement factories and that as there was not much traffic on the level crossing, there was no necessity to erect a gate or post a gateman. It was further averred that the train was going at a speed of 8 to 10 miles per hour and that it was the negligence of the plaintiff that resulted in the accident.
4. At the instance of the defendant, the Neptune Insurance Company, with whom the truck was insured, was joined as a party. When it was found that the suit was time-barred against the Insurance Company, the plaintiff elected to discharge it and proceeded against the railway administration alone.
5. The learned counsel for the appellant, Shri D. L. Jaywant, urged that from the proved facts on record, the negligence of the defendant consisted of two acts of omission. Firstly he pointed out that it was the duty of the railway administration to post porters to guide the driver of the railway engine, as the train was going in a reverse direction with the engine at the rear.
Secondly the learned counsel urged that it was the duty of the railway administration to erect a gate and post a gateman at the level crossing, where a public highway passes. He drew a distinction between an accommodation crossing and a highway crossing and argued that in the latter case, the responsibility of defendant was to take all possible precautions to avert collisions.
6. Taking up the first act of negligence alleged on the part of the railway administration, we find that the train was going at a speed of about 6 to 10 miles. The plaintiff-appellant was going in a direction facing the railway train, as is clear from the map of the spot (Ex. D. 1). It is also established beyond doubt, that the train was whistling from time to time.
It is true that the train was going in a reverse direction with the engine at the rear. But all the same, the guard the shunting guard and the pointsmen, who were in the train were giving due directions and signals from time to time. It was not necessary for the railway administration to post some porters, who would run with the train, leading it upto the destination.
7. In our opinion, two facts are very significant in the present case, one being that the truck dashed against the loading wagon; and the second that as a result of the impact, the wagon was derailed. These facts would negative the appellant's contention that he was driving the truck at a slow speed of 10 miles per hour.
Although the train was coming from the left side and could easily be seen by one on the road, the appellant as P. W. 1 stated that he saw it only when he was at a distance of four to five feet from the level crossing. Had the truck been going at a slow speed, it was, even then, possible for the appellant to stop the truck. In that case, the impact would not have been so great as to derail the wagon.
The fact that the wagon was derailed shows that the appellant was going at a high speed, so that it was not possible for him to stop the truck even in the face of the imminent danger. This is an inevitable conclusion to be drawn from the circumstances on record. We, therefore, see no reason to differ from the trial Court in holding that there was no negligence on the part of the railway employees in driving the train in the manner they did; and that the plaintiff-appellant himself was negligent in driving his truck at a high speed.
8. However, the learned counsel for the appellant urged that the appellant's neghgence in driving the truck at a high speed was immaterial in the present case, as the liability for the tort was to be determined on the fact, as to who had the last opportunity to avoid the accident. It was pointed out that the respondent's negligence in failing to erect a gate or in posting a gateman was the prime cause of the accident.
It was argued that this was a case of a public highway and not an accommodation crossing, where any passer-by uses the highway as a matter of right and not of courtesy, and, therefore, it was incumbent on the railway administration to take all possible precautions to avoid accidents, as an ordinary prudent man would take.
9. The learned counsel for the respondent, on the other hand, urged that it was not necessary to erect a gate, because there was not much traffic on this road. Moreover, he pointed out that the highway where it crosses the railway line, is part of the railway premises.
A distinction ought to be made between the degree of care required for drivers of vehicles driving on a highway, where all others have a right to pass, and the care needed for the drivers of locomotives driving on regulated and demarcated tracks within their own premises. This raises a very controversial point and we think it necessary to trace the development of this branch of the law.
10. The learned authors, Clerk and Lindsell, in their commentary 'On Torts' (Eleventh edition, page 357 para 580) observes as follows, on the authority of Knight v. G. W. Railway, 1942-2 All ER 286: 1943 KB 105.
'Again, the degree of care which a railway undertaker must use in approaching a crossing over a public highway is greater than that which must be taken on approaching a private accommodation crossing for the use of the adjoining occupier because the likelihood of an accident is much greater.' In the case referred to, the cows of the plaintiff were crossing the railway line at an accommodation crossing on a foggy morning, when the visibility was upto 30 to 50 yards. The fog signal had indicated 'all clear'. The driver of the train had blown the whistle at the place, where a board was posted. The only negligence alleged was that the driver of the railway engine was going at a speed of 30 miles per hour, although visibility was poor. Tucker J., made the following observations with reference to the degree of care required:
'Now, I think there is a duty cast upon the railway company to take reasonable precautions in regard to the approach of their trains to a crossing of this kind. I am satisfied, however, that the nature of the precautions and the degree of care which is required may vary very considerably according to whether the crossing which is being approached is one over which the public have a right to go or whether it is merely a private accommodation crossing for the use of the adjoining occupier; but I think the difference is merely a difference in the degree of care which is required in the parti-cular circumstances. I do not accept the contention of counsel for the defendants that toe defen-dauts' only obligation is to refrain from doing some-thing which would in effect amount to obstructing the plaintiff's right of way across this crossing. 1 think there is a greater duty than that.'
However, the learned Judge held on facts that the necessary degree of care had been taken and that it was not a case, where the doctrine of last opportunity applied.
11. The case of Lloyds Bank Ltd, v. Railway Executive, 1952-1 All ER 1248 was a case of an accident occurring at an accommodation crossing. The learned Law Lords in their appellate judgment observed as follows : --
'Apart from statute the defendants were under a duty at common law to prevent danger at these crossings. As the danger increases, so must their precautions increase. The defendants cannot stand by while accidents happen and say: 'This increased traffic on the road is no concern of ours'. It is their concern. It is their trains which help to cause the accidents, and it is often the increased number of trains which increases the danger as well as the increased traffic on the road. The defendants must, therefore, do whatever is reasonable on their part to prevent the accidents. They need not at common law go so far as to turn the crossing into a public level crossing with all the statutory obligations incident thereto, but they must do all that may be reasonably required of them in the shape of warnings, whistles, and so forth so as to reduce the danger to people using the crossing.'
12. The effect of contributory negligence on the liability and quantum of damages was stated by the learned Law Lords as early as 1876 in the case of Radley v. Directors of L. and N. W. Rly. Co., 1876-AC 754 as follows: --
'Though a Plaintiff may have been guilty of negligence, and although that negligence may, in fact, nave contributed to the accident which is the subject of the action, yet, if the Defendant could, in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the Plaintiff's negligence will not excuse him.'
The same principle is reiterated in later cases, and ultimately embodied in the codified -- Law Re-form (Contributory Negligence) Act, 1945. The learned author -- Winfield -- 'On Tort' -- (Sixth edition para 126 at page 511) observe as follows : --
'The Law Reform (Contributory Negligence) Act 1945 applies the principle on which the Maritime Conventions Act, 1911, was based to contributory negligence on land. It applies to cases arising after June 15, 1945, and Section 1 (1) provides as follows : 'Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.'
13. So far as the law in India is concerned, the Indian Railways Act IX of 1890 does not cast any statutory duty on the railway administration to erect gates at the level crossings, where a public highway crosses the railway. In England, the Railways Act was amended so as to make it obligatory on the railway administration to erect gates at public level crossings. As regards the degree ofcare required on the part of the railway administration and its employees the common law rule in this behalf was based on the general principles relating; to torts.
It was embodied in the Maritime Conventions Act 1911 and later in the Law Reform (Contributory Negligence) Act, 1945. In our country there is no legislation casting a statutory responsibility on the railway administration to erect gates or on the lines of the 1945 Act, although Maritime Conventions Act, 1911 is in force. Therefore, it would not be unsafe to apply the common law rule according to the principles of equity, justice and good conscience.
14. The effect of the Law Reform (Contributory Negligence) Act 1945 was considered by the learned Law Lords in Davies v. Swan Motor Co. (Swansea) Ltd., 1949-2 KB 291 and the principles laid down in Davies v. Mann, 1842-10 H and W 546, were reiterated and the doctrine of last opportunity was held inapplicable. Their Lordships of the Privy Council adopted the same principle in. M. Sigurdson v. British Columbia Electric Railway Co Ltd., 1953 AC 291. The case of Hill-Venning v. Beszant, 1950-2 All ER 1151, was again a case of contributory negligence, though on a public highway. In the case of Cork v. Kirby Maclean, Ltd., 1952-2 All ER 402, the learned Law Lords reduced the damages to half of the normal damages on account of the plaintiff's contributory negligence. The ratio decidendi of these cases is that a defendant cannot altogether escape liability for damages due to the contributory negligence of the plaintiff, which may only warrant the reduction of the damages, as the court deems proper under the circumstances of the case. In the recent decisions of the English Courts, we find the same principle applied : See Slater v. Clay Cross Co., Ltd., 1956-2 All ER 625.
15. The case of Lloyds Bank Ltd. v. British Transport Commissions. 1956-3 All ER 291, was a case of permissive user by the general public of a railway tunnel, where the accident took place on account of the negligence of the driver of the railway engine. The claim of the plaintiff was negatived by the learned Law Lords on the ground that the road was a private road and that the defendants-had taken all reasonable precautions to avoid accident. The learned counsel for the respondent in the present case placed reliance on this case and urged that the respondent was not at all liable.
The learned counsel further placed reliance on the case of Trznadel v. British Transport Commission, 1957-3 All ER 196n, where the claim of an employee of the railway administration, who went to work on the lines, was negatived. The principle laid in the two cases of 1956-2 All ER 625 (Supra) and 1957-3 All ER 196n. (supra) is that if no negligence be found on the part of the defendant, he would not be liable at all.
16. Further the learned counsel for the respondent invited our attention to the case of Lal Ramkumarsingh v. Governor General in Council, ILR (1950) Nag 473 : (AIR 1950 Nag 234), decided by Mangalmurty and R. K. Rao JJ. The said case is clearly distinguishable, as it relates to the trespass by the cattle of the plaintiff. Their Lordships-distinguished the case of a trespasser from that of a licensee or an invitee and held that the duty of the defendant in the case of a trespasser was nothing more than an abstention from doing a wilful act in reckless disregard of ordinary humanity.
The learned counsel further invited our attention to another Division Bench of this Court inHarakchand Patni v. Union of India, 1957 MPLJ 617 : (AIR 1958 Madh Pra 93). From a reading of the judgment, we find that the question whether it was an accommodation crossing or a highway crossing was neither raised, nor tried in that case. Therefore, it was not necessary in that case for the learned judges to consider that aspect. With due respect, we agree with the view of the learned Judges, which, in our opinion, may apply to a case of accommodation crossing. Therefore, that case is also distinguishable from the present one.
17. We have to apply the law to the facts of the present case, as they are established from the record. The second act of negligence alleged on the part of the railway administration was its failure to erect a gate at the level crossing and to post a gateman. The decision of this question depends on the fact whether the road is a public highway or an accommodation crossing. The degree of care required would depend on this fact.
(18) In para 3 of the plaint, the appellant averred as follows :--
'That there are a number of level crossings of the G. I. P. Railway on this Katni Kymore Jukehi Road which is a public road used by the public to and fro from Katni to Kymore and Jukehi and being a public road it is the duty of the defendant to guard all level crossings by means of gates and the duty is cast upon the Railway of posting point-men and of closing gates in sufficient time before the approach of a train is cast upon the defendant, but the defendant has not fixed any such gates at the level crossing in suit.'
In para 3 of the written statement, the respondents made the following allegations : --
'The allegations are of a general nature and are denied. The Railway line from Jukehi to Kymore is only a Siding constructed for the convenience of traffic concerning the Cement Companies. The Railway traffic on this siding is very infrequent and light. The defendant had taken every care and precaution to safe-guard the traffic at the level crossing in question at the material time.'
It is pertinent to note that there was no specific denial that the road is not a public highway, nor any allegation that the level crossing is an accommodation crossing. None of the respondent's witnesses even hinted that the level crossing was an accommodation crossing, while the appellant asserted that it was a public road. Therefore the only inference possible under the circumstances is that it is a public highway and not an accommodation crossing.
19. The only explanation given by the defendant in not erecting a gate and posting a gateman was that the railway line was a siding and the traffic of trains is very meagre. In the trial Court, the plaintiffs counsel relied on Section 13 of the Indian Railways Act, which is as follows : --
'13. 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) boundary-marks or fences be provided or renewed by a railway administration for a railway or any part thereof and for roads constructed in connection therewith;
(b) any works in the nature of a screen near to or adjoining the side of any public road constructed before the making of a railway be provided or renewed by a railway administration for the purpose of preventing danger to passengers on the road by reason of horses or other animals beingfrightened by the sight or noise of the rolling stock moving on the railway;
(c) suitable gates, chains, bars, stiles or handrails be erected or renewed by a railway administration at places where a railway crosses a public road on the level;
(d) persons be employed by a railway administration to open and snut such gates, chains of bars.'
Although Section 13 (c) provides that the Central Government may require a railway administration to erect suitable gates, chains, bars, stiles or handrails at places where a railway crosses a public road on the level, the statutory duty of the railway administration does not arise, till the Central Government requires it to do so. In the absence of any such requisition, there is no statutory liability on the railway administration to do any of the things mentioned in the section, as was held by a Division Bench of this Court in 1957 MPLJ 617 : (AIR 1958 Madh Pra 93) (Supra). In our opinion the trial Judge was correct in holding that the section did not help the plaintiff in any manner.
20. However, the question before us is what should be the degree of care required in the present case, where there is no statutory duty cast upon the railway administration to erect a gate or to post a gateman at the level crossing. Should we impose that standard of degree of care by applying the common law rule to the Indian circum-stances? On one matter, we are clear that the degree of care would certainly be more than that required at accommodation crossings.
As the learned Law Lords indicated in 1956-3 All ER 291 (Supra), the standard of degree of care should be -- 'As the danger increases, so must the precautions increase'. In cases of footways, it may not be necessary to put a whistle board or a warning board. In cases of accommodation crossings, the erection of a whistle board near the railway track and a warning board near the public road may be sufficient. In cases of public highway crossings, the erection of a gate and a posting a gateman may be necessary under certain circumstances even in the absence of any statutory obligation.
21. In our opinion, the question of erecting a gate and posting a watchman would depend upon the extent of traffic on the railway and on the public road. In the present case, there is no evidence on record about the extent of traffic' on the public road. Regarding railway traffic, there is evidence that one train only per day goes and returns on this siding. It is, therefore, clear that the rail-traffic is insignificant, while we are unable to gather any idea of the road traffic. The level crossing, undoubtedly, is 3 public level crossing.
22. In Liddiatt v. Great Western Railway Co., 1946-1 All ER 731, the learned Law Lords held that it was not necessary for the railway administration to erect a gate and keep a watchman at footways or accommodation crossings. Ordinary precautions, such as a sign board indicating a warning to the passers-by and a whistle-board would serve the purpose. But a greater degree of care would be required at a highway crossing.
This being a level crossing, where a public highway crosses the railway line, we think that the degree of care to be taken by the railway administration ought to be greater than that required for an accommodation crossing. We also feel that it may be necessary in some cases to erect a gate even at an accommodation crossing, if the rush of traffic be heavy. On the other hand, if the traffic be insignificant Or negligible, it may not be neces-sary to erect a gate and post a gateman even at apublic level crossing.
No hard and fast or absolute rule can be laid down in this behalf. The question of erecting a gate would depend on the situation of the crossing, visibility of the rail track from the road, any sharp turns or curves and the extent of the road traffic etc. In view of the paucity of evidence on these points in the present case, we are unable to hold that the failure of the railway administration to erect a gate and post a gateman amounted to an actionable negligence by itself.
23. Earlier we have already held that the employees of the defendant were not negligent in driving the train, while the appellant was guilty of negligence in driving his truck at a high speed, so as not to be able to control it. The accident, therefore, took place, due to the fault of the appellant. To sum up our conclusions, they are as follows :--
(a) That the respondent's action in failing to erect a gate and to post a gateman at the level crossing did not amount to an actionable negligence by itself in the present case.
(b) That the employees of the respondent were not guilty of any negligence in driving the train on the day of accident.
(c) That the appellant was guilty of negligence in driving his truck at a high speed.
24. As the accident occurred due to the negligence of the appellant, we hold that the respondent was not liable for damages.
25. The decree of the trial Court is, therefore, correct. This appeal fails and is dismissed. In the circumstances of the case, however, we direct that the parties shall bear their own costs throughout.