VISHNU DIGAMBAR PALUSKAR Vs. BBAND CIRAILWAY

JUDGEMENT

(1.) After setting out the rival contentions of the parties the judgment proceeded : For the purposes of this case there are two alternatives. Either the person who placed the ladder in the rack was in defendants employ, or he was not. la it possible in the circumstances to say that one hypothesis is more likely than the other? I am satisfied on the evidence of the Carriage Inspector Cantervischer that these ladders are intended to be kept under the berths. That is consonant with common sense, No responsible person would place an article of that kind in a rack such as we have here. I am also satisfied that the Company's servants would ordinarily remove a ladder from the rack if they found it there. It is possible that they might place it there temporarily while sweeping or washing the carriage, and that it might escape notice. On the other hand the train stands at the passenger platform for an hour and a half before it starts and any passenger can enter a compartment. Luggage i brought in by all kinds of people, passengers, their servants or the coolies employed by them, and a ladder under a berth is no doubt frequently much in the way when luggage has to be disposed of. I do not think I am bound to affect "a cloistered seclusion- about these matters. Everyone who travels on Indian railways knows quite well that these ladders are frequently placed by passengers or their servants, in the lavatories or on unoccupied berths in order to make room for luggage. In the present case it is impossible to exclude the possibility that some passenger entered the carriage and placed the ladder in the rack, and then transferred himself to another compartment on finding that the lower berths were occupied, or because he decided to join a friend elsewhere. Such things often happen.

(2.) In my opinion no analysis of the evidence can carry the matter further and I am unable to say that of the two hypotheses which I have propounded one is more likely than the other-This being so can it be said that negligence on the part of the defendants is made out? Clearly not: and unless the burden lies on the defendants to disprove negligence plaintiff must fail. It is no doubt urged that defendants were in any case negligent in allowing the train to start with the ladder in the rack. I will deal with that point later.

(3.) A considerable number of cases have been cited and to these I have referred, and to other cases also where the question of negligence has been discussed. Reference has also been made to Beven's work on Negligence, 3 Edition, and to the article on "Negligence- in Halsbury's Laws of England, Volume XXI, para 751. The question resolves itself into this--is this a case where the doctrine res ipsa loquitur is applicable? In other words, "do the facts speak for themselves- that is to say, can negligence be inferred from the fact of the accident? Upon this point Blackburn J. in Scott V/s. London Dock Co. (1865) 3 H. & C. 596 remarked: "The question depends on the nature and character of the accident. -Now it is impossible to find two cases which are identical in point of fact--none at least has been discovered in which the facts are identical with those before me, Many of them are complicated by a consideration whether a case ought or ought not to be left to a jury, and it is mainly with reference to this question that the maxim res ipsa loquitur is important. The question "can negligence be inferred?-is for the Judge. The question "ought negligence to be inferred?-is for the jury (see Metropolitan Railway Co. V/s. Jackson (1877) 3 App. Cas. 193 197 or as is said in Pollock on Torts (11 Edition, p. 453, footnote): "Strictly the jurors have to say not whether negligence ought to be inferred, but whether, as reasonable men, they do infer it. --Here both questions are for the Judge. Can negligence be inferred from the nature and character of this accident and would a reasonable man infer it. Practically no advantage is gained by separating the two questions.