JEHANGIR MUNCHERJI LALI Vs. BBAND CIRAILWAY COMPANY

JUDGEMENT

(1.) The plaintiff, Jehangir Muncherji Lali, a share and stock-broker, in the afternoon of the 4th of November 1911, purchased a second class ticket for Udwada at the Church Gate station and got into one of the defendants trains, known as the Surat Excursion Train, which left that station at about 2-30 P. M. on that day. He formed one of a party of seven who were proceeding to Udwada for religious purposes. He got into one of the second class compartments of carriage No. 3078 and took a corner seat in that compartment with his back to the engine on the side away from the platform and next to the window opening on the side where parallel rails run and are used by trains coming up to Bombay. His train proceeded as far as the Andheri station and while it was passing that station at a fair speed, his left arm which, in his plaint he states, was out of the open window projecting not more than four inches, was injured and fractured by an open door of a stationary train on the up line of that station. He sustained serious injuries, and the train in which he was travelling was stopped by some one pulling the chain. It then proceeded as far as Borivli station where he was taken out of the train and sent back to Bombay. His friends took him to Dr. Masina s Hospital where he was treated for his injuries. The injured arm was found to be fractured and although it is now set right, there is no doubt that the plaintiff s injury was serious and he must have gone through much physical suffering and pain and lost his business for some time. In March 1912, he filed this suit claiming Rs. 30,000 as damages, which he alleges, he sustained by reason of permanent injury to his arm and the other consequences flowing from that injury which he attributes to the negligence of the defendant-Company.

(2.) The defendants by their written statement in the first in stance denied negligence and further pleaded that even if there was negligence on their part, they were absolved from all liability in that the defendant in projecting his arm from the carriage window was guilty of contributory negligence.

(3.) Some time before the suit came on for hearing, an application was made to me by the defendant-Company to try the issues of negligence and contributory negligence as preliminary issues, but the application was not entertained. Soon after my refusal to have the suit put down for the trial of preliminary issues, it appears that the legal advisers of the defendant-Company considered their position with care and on the 15th of August 1912 they wrote to the plaintiff s attorneys informing them that the Company had decided not to continue the defence of the suit on the ground that they had not been guilty of negligence, and that they accordingly withdrew their plea of non-liability for negligence as raised in para. 2 of their written statement, but would defend the suit on the plea of contributory negligence raised in para. 3 of their written statement. It seems to me that in adopting this course the defendant-Company have acted most wisely and have by their conduct in this respect saved much cost to the parties and much time of the Court. At the hearing it was agreed between counsel that the issue as to contributory negligence should be first tried. If the issue was decided against the plaintiff, the suit would be at an end. If decided in his favour, the suit would then, it was understood, proceed on the other issue as to the nature of the injuries and the quantum of damages.