DAYA SHANKAR Vs. BBAND CIRYCO

JUDGEMENT

(1.) This is a second appeal by one who was the plaintiff in the Court; below. By this suit the plaintiff claimed against the Bombay, Baroda and Central India Railway Company a sum of Rupees 1,300 as damages. The Court of first instance allowed a sum of Rs. 1,200 as damages, but on appeal by the railway company the learned Subordinate Judge who beard the appeal dismissed the suit altogether.

(2.) The allegation in which the suit was founded and the facts which have been found established by the lower appellate Court are these. There was a fair at Bithur in the District of Cawnpore. The plaintiff was coming from the fair and was going towards Cawnpore. At a short distance from the Bithur Railway Station the plaintiff had to cross the railway line. There was a pair of gates which was open and permitted the plaintiff to cross the railway line. As the plaintiff arrived on the rails, travelling at a moderate speed of about 7 miles an hour, a railway engine coming from the direction of the railway station at Bithur collided against the plaintiff's ear and broke it. On these facts, the learned Subordinate Judge held that the plaintiff was guilty of contributory negligence, inasmuch as it was the duty of the plaintiff to be circumspect and, on arriving near the gate, to look en either side and to see if any train or engine was passing.

(3.) In this Court it has been contended that the learned Subordinate Judge drew a wrong inference from the facts found and that there was no contributory negligence.