A.B. Rohatgi, J.
(1) This is one of those cases which from time to time raise the question of the responsibility of railway authorities for accidents at level crossings.
(2) On September 23, 1961 at about 1.30 a.m. in the night a driver of the plaintiff company was driving a mercedes motortruck. That night he and his friend had been to a circus show at Meerut. They were returning to Delhi in their respective trucks. They were proceedings on the main Meerut Delhi road. It is a busy road with much vehicular traffic. On this road between Meerut city and Kharkhoda railway station there is a manned public level crossing. This level crossing has iron gates on both side of the road. There is a cabin and lodging turn the gateman. The practice of the railway was to close the gates when a train was crossing. A red light signal was also provided to warn the approaching public and vehicles to wait till the train passed.
(3) When the plaintiff's driver reached the railway crossing he found the gates open. There was no danger signal to warn the public of the danger of any approaching train. In fact the friend's truck which was ahead of the plaintiff's truck had safely crossed the line. He was fortunate. But when the plaintiff's driver entered the gate he suddenly found a goods train running at full speed from Hapur side towards Meerut city in front of his truck. With all his presence of mind the driver could not avert a collision. The truck dashed against the wagon next to the engine of the train. As a result of the collision the truck was damaged. Its front portion including the engine was completely smashed resulting in heavy loss to the plaintiff.
(4) On November 22, 1963 the plaintiff company brought a suit to recover Rs. 14,000.00 which they had to spend on the repairs of the vehicle. This was their claim for damages.
(5) The defendant Northern Railway denied their liability. Though they admitted that the gates were open and that the driver of the truck struck the wagon next to the engine of the train, they pleaded that the 'accident was not due to the negligence of the northern railway administration or its servants but it was due to the carelessness and negligence of the driver of the plaintiff'. It was said that it was a moonlit night, that the driver could easily see the railway track and hear the whistle of the engine. It was maintained that the railway had taken reasonable and proper steps for the protection of the public and that the accident was the result of the foolhandiness of the plaintiff's driver. In substance the railway pleaded : 'True we invited the driver to cross the line by reason of the gate being unlocked, but we did not invite him to leave his common sense behind. He could have averted the danger.'
(6) The plaintiff examined a number of witnesses. On behalf of the railway the president of the accident inquiry committee, the fireman, driver and guard were called in evidence. The Judge inspected the scene of the accident in 1966. After hearing evidence and arguments he gave his decision. He dismissed the suit. He held that the plaintiff's driver was guilty of contributory negligence and be himself was the author of his own wrong. He said this : 'The railway was no doubt negligent in not closing the gate to warn the public of the approaching train but the plaintiff's driver was all the more negligent in not having a proper look out from both the sides of the road at the level crossing in question.'
(7) On the question of damages he held that the plaintiff had to spend more than Rs. l4,000.00 in repairs and replacement of the parts of the truck. But as on the issue of negligence he held the driver guilty of contributory negligence he dismissed the suit. From his decision the plaintiff appeals to this court.
(8) One central fact which is undisputed is that at the time of the accident the gate were open. The gateman was absent when it was his duty to be there. It is in evidence that both the driver and the gateman were later on prosecuted. The driver was acquitted by the magistrate. But the gateman was held guilty of dereliction of duty in as much as be failed to close the gates when the train was approaching. He was eventually dismissed from service.
(9) The railway instituted an inquiry into the accident. The report of the inquiry was produced. The president of the inquiry committee gave evidence. The committee found that the gate was open at the time of accident, that the gateman was absent from duty and that 'the accident was the direct result of this failure' of the gateman to close the level crossing. But the committee, as did the Judge, held that the driver was also responsible for the accident because, though he could see the train approaching, he attempted in a hurry to pass the railway line in the hope that he will be able to pass over before the train arrived at the level crossing.. The committee made recommendations to prevent future mishaps. The president in evidence also referred to a subsequent accident in which four persons lost their lives. That accident was also between a truck and a running train at this very level crossing.
(10) The evidence in the case establishes certain glaring facts. The train was running at a speed of 27 miles per hour. The engine driver admitted in his evidence that it was his duty to stop the train if he found the gates open. But it seems that he made no attempt to stop the train. When the train came to a stop 37 wagons had passed the gate. Only 15 remained behind. It was a long train of 52 wagons. The truck struck the wagon next to the engine. The train in question was a goods train. It had no schedule timing. This was admitted by the railway witnesses.
(11) To sum up the plaintiff's case was founded on these things, namely, (i) ommission to close the gate; (ii) the absence of the gatekeeper; (iii) the lack of a warning system at the crossing; (iv) excessive speed of the train; (v) failure to stop after seeing that the gate is open. The breaches alleged in the present case were breaches of the duty to take care.
(12) It was said in evidence by plaintiff's witnesses that it was a cloudy night, that no whistle was given and none atleast was audible. The railway witnesses were unable to contradict this evidence. Though they said that it was a moonlit night and the train whistled these cannot be said to be positively proved facts. The evidence is conflicting. In the rumbling sound of the approaching train one may or one may not hear whistle.
(13) These are the facts. Now the law is well settled. Where a railway line crosses a highway or public path reasonable precautions must be taken to reduce the danger to the public to a minimum, the nature of the precautions depending on the circumstances. It is the practice of railway authorities to keep the gates at level crossings closed whenever the approach of a train makes it dangerous for the public to cross the line; and any neglect of this customary precaution is evidence of negligence which may render the authority liable to any person who is hit or hurt. (Northern Eastern Railway v. Wanless, (1894) L.R. 7 H.L. 12.
(14) It being the duty of the railways, where its line crosses a public highway on the level, to keep the gates closed when a train is approaching. A passenger along the highway who finds the gates open is reasonably entitled to assume that no train is approaching and that he may cross with safety, for the act of the railway in leaving the gates open 'amounts to a statement, and a notice to the public, that the line at that time is safe for crossing.' (North Eastern Rly.'s case, supra). When the gate of level crossing is open it is an express invitation to passerby. It tentamounts to a representation that is safe for him to cross. He is not bound to look so carefully to see as he would be if there had been no such invitation. The passerby. whether he is a highway padestrian or a motorist, a truck driver, is entitled to assume in the absence of warning that condition are usual. The open gates amount to an invitation that the plaintiff can safely pass and if he is injured he is entitled to recover. (See : Clerk and Lindsell on torts 14th Ed. paras 926,996).
(15) A recent decision on the point is a Privy Council case. In Commissioners far Railways v. Mc Dermott (1967) A..C. 169, where the plaintiff was run over by a train because she had tripped and fallen at a level crossing which was in a defective condition and remained lying with her feet across the line, presumably dazed or unconscious, when the train approached, the Board held that the railway were negligent and liable in damages. The Privy Council ruled that the 'inherently dangerous activity' of running trains through a level crossing lawfully used by the public imposes upon the railway authority a duty to use all reasonable care which is independent of and additional to the duty owed by the authority as occupiers of the crossing to persons lawfully entering upon it. 'Occupation of premises is a ground of liability'. Commissioners for Railways (supra) per Lord Gardiner Lc at page 186). It is a ground of liability because it gives some control over and knowledge of the state of the premises, and it is natural and right that the occupier should have some degree of responsibility for the safety of the persons entering his premises with his permission. In the language of the well-known passage in Lord Atkin's speech in Donoghue v. Stevenson (1932) A.C. 562 there is a 'proximity' between the occupier and such persons and they are his 'neighbours'. Thus arises a duty of care.
(16) Donoghue v. Stenvenson illumined the legal conception of negligence. Applying the theory of 'proximity' or 'neighbourly' relation between the railway operators and the public lawfully using the level crossing the Privy Council held that the liability is based on the 'perilous nature of the operation'. The railway operators' general duty of taking all reasonable precautions to ensure the safety of persons lawfully using a level crossing must include an obligation to keep the crossing in a proper state for the passage of traffic across the rails.
(17) The result of the authorities is summed up in short pithy sentences in Halsbury's Laws of England 3rd Ed. Vol. 31 page 598 in these words:
'It is evidence of negligence if the gate is open when a train is approaching'.
And 'An open gate is an invitation to cross'. The learned Judge held that the plaintiff's driver was guilty of contributory negligence by reason of the reckless way in which he crossed the line. I think on this point he was clearly wrong. The gates were open. The driver knew the railway practice that if the gates are open it is a tacit invitation to him that he can cross in safety as there is no danger of an approaching train. This threw the plaintiff's driver off his guard and produced in him a state of mind in which he might not unreasonably suppose that it was unnecessary for him to look out before crossing to see whether a train was coming. The driver thought, as anybody would think, that as the gates are not closed no train was coming, and thereforee he might go over the crossing in safety without taking the precaution of looking up and down the line, or any other such precaution as might otherwise be necessary. If that be so, there was no want of reasonable care on his part. In fact the fellow driver who was ahead of him in another truck was able to cross in safety. He drove and passed unhurt. The plaintiff's driver also thought that there was no danger. This produced in his mind a sense of security which would prevent its being a want of reasonable care not to look up and down the line to see whether a train was coming. (Smith v. South Eastern Railway Company (1896) 1QB 178 per Lord Esher MR.).
(18) The gatekeeper did not close the gate as was his duly. The duty of the gatekeeper stationed by the railway authorities at a level crossing is to prevent the traffic and the padestrians from crossing when the train is approaching. This duty the gatekeeper neglecced to perform on the fateful day. The plaintiff's driver thought that the line was clear. He was misled by the gatekeeper's neglect of duty and thrown off his guard. On the sudden, a man may not be sufficiently self-possessed to know in which way to decide; and in such a case the wrongdoer is the party who is to be answerable for the loss to the sufferers, though it might have been prevented by the other party's acting differently. (Chaplin v. Hawes (1828) 33 Rr 705, per Best CJ). It is easy to be wise after the event. But hindsight is not the test of a reasonable man. This was the error in Judge's thinking. In this case I think the defendant gave an express invitation, and that it was in consequence of his acting upon that invitation that the plaintiff came of grief. In my opinion the plea of contributory negligence, the sole defense to the action, cannot be sustained on the evidence in this case.
(19) Apart from the common law duty to prevent danger at these crossing there is also the statutory obligation. A statutory regulation SR'229/ 3(b) says:
'THE gates or chains of these exempted level crossings may normally be kept open to road traffic but must be closed and securely fastened across the road for the passage of a train or other railway operations'.
This regulation has the force of law. The duty of the railway authority is defined and prescribed by the regulation. The railway admit that they were in breach of that duty. 'It is the breach of the statute, not the act of inadvertance, or carelessness, which is then the dominant or effective cause of the injury.' (Casewell v. Powell Duffryn Associated Collieries 1940 Ac 152per Lord Wright).
(20) In case of failure to perform the statutory duty in circumstances such as these the railway cannot plead contributory negligence or joint negligence as defense to the action. (See : Union of India v. Hindustan Lever Ltd. , Union of India v. Harnam Singh, 1956 (II) Dlt 586. Union of India v. S. Ghosh. : AIR1973Pat129 ).
(21) It is, I think, now clearly established that the railway must take reasonable care to prevent danger at these crossings, and this is an obligation which keeps pace with the times As the danger increases, so must their precautions increase. The railway cannot stand by while accidents happen and say : 'The people using our crossing must look out before entering.' Safety of the user 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 greater risk of injury, the greater the duty of care. The railway must. thereforee, do whatever is reasonable on their part to prevent the accidents. They must do all that is reasonably required of them, in the shape of warnings, whistles, and so forth so as to reduce the danger to people using the crossing. In the present case it is not positively proved that the train whistled or it slackened its pace or that the road traffic was warned of the approaching train in any manner.
(22) The failure of the railway to close the gates amounted, in my opinion, to a dereliction of the duty which they owed to the public. Their servant failed to take that reasonable and proper precaution, and he, being the servant of the railway, they are responsible for the default. They were in breach of the statutory obligation to take proper care and precaution with regard to the management of the traffic at this crossing. They cannot plead contributory negligerce in defense. They did not observe the law. How do we enforce the statutory duty against the infringer By awarding damages. As Lord Wright terse put it : 'the particular remedy of an action for damages is given by the common law in order to make effective, for the benefit of the injured plaintiff, his right to the performance by the defendant of the defendant's statutory duty. It is an effective sanction.' (London Passenger Transport Board v. Upson & Another, (1949) A..C.
(23) Railway authorities must take reasonable care to avoid injuring members of the public at a level crossing. If their servants do something which would lead a reasonable man to believe that it is safe to cross the line and the plaintiff thereupon attempts to cross and is run into by a train, there is evidence of negligence against the railway authorities. (Charlesworth on Negligence (11th Ed.) Para 825 Page 495).
(24) Counsel for the plaintiff raised a question of some subtlety. He said that on the question of contributory negligence no issue was raised and be was taken by surprise when the suit was dismissed on that ground. In actions of negligence, the contributory negligence of the plaintiff is capable of being raised under the general issue of negligence. It is not possible to separate the two issues, contributory negligence of the plaintiff and the causa causans of accident consisting in the negligence of the defendant. They seem to me in most cases to be inextricably bound up together. Take this very case. The question for decision is whether it was the train's fault or man's fault What was the cause of the accident Whose negligence was the real or substantial cause of the accident As Lord Summer said, ''the inquiry is an investigation into responsibility.' (British Columbia Elect. Rly., v. Loach (1916) 1 Ac 719,
(25) The burden of proving contributory negligence is on the defendant. It does not rest on the shoulders of the plaintiff. In order to discharge the burden of proof it is not necessary for the defendant to give evidence about such matters, because contributory negligence can be inferred from the evidence adduced on the plaintiff's behalf or from the primary facts so found by the courton a balance of probabilities. In the present case the defendant raised allegations of contributory negligence. The general issue of negligence would embrace this asoect of the inquiry. (Wakelin v. London & South Eastern Railway, 1896 1 Qb 189 .
(26) Counsel for the railway has not disputed the finding of the trial Judge on the issue of damages. The Judge found that the plaintiff's claim for Rs. ]4,000.00 was not extravagent. On quantum he decided in favor of the plaintiff.
(27) For these reasons the plaintiff's appeal is allowed. The suit is decreed with costs here and in the court below.