HIRJI KHETSEY AND CO Vs. BBAND CIRYCO

JUDGEMENT

(1.) The material facts about which there is little, if any, dispute are that the defendant-Company received from the plaintiffs 186 bales of full pressed cotton for conveyance from Ujjain to Colaba. The goods were to be carried at railway risk. They appear to have been loaded on a bogie open truck forty-five feet long by nine feet wide, inside measurements, between the 14th and 16th April at Ujjain. During that time, though there is no specific evidence on the point, it may be taken for granted that a considerable number of trains passed. Three lines converge on Ujjain, the defendant Company s lines, the G.I.P. Ry. and the R.M. Ry. But the general control of the station is in the hands of the defendant- Company. The waggon No. 13024 duly loaded with these 186 bales was finally despatched from Ujjain between 5 and 6 p.m. of the 16th April, being the 42nd waggon on the 62 up train, which consisted of 59 waggons and the guard s van. The contention of the defendant-company is that the waggon was properly and carefully loaded at Ujjain, that none of the coolies employed in loading it smoked in its vicinity, that there were notices prohibiting smoking, in English and Vernacular, that the waggon itself was examined and found not to be in any way defective, that the load was properly sheeted with three fire and water and rat proof sheets, the measurements of which are twenty-five by seventeen-and-a- half, and that the sheeting was rapped and sealed and that all these precautions were verified more than once by the clerk in charge of that business at Ujjain. The train started, and, like nearly every other train running that night on this section of the line, was considerably behind time. The traffic was greatly congested, and there was great lack of water between Bangrode and Rutlam. At a station called Nagda the 72 up was stopped and a down mixed brought up alongside it. The engine of that train must have been close to the 62 up, though the evidence in this case is that it was at some distance from waggon 13024. That engine went to water, that is to say must, before the trains parted, have passed some part of 72 up at least three times, and at very close range. No fire was, however, detected, and the 72 up proceeded to Bangrode which it reached between 11 and 12 P. m. on the 16th. Here, owing to the congestion of the traffic, it received orders from Rutlam, not to proceed. The engine was needed to carry off the traffic which had accumulated in Rutlam; and the Bangrode station officials were ordered to stable this great train, consisting of 59 loaded waggons at Bangrode. We may assume that if the waggons were loaded with merchandise averaging even only a quarter of the value of that packed in waggon 13024 the total value of this load would have been very considerable. I mention this in connection with one of many arguments which may have to be noticed later, namely that it would be unreasonable to expect the defendant-company to maintain any fire quenching apparatus at a small inconsiderable station like Bangrode, the average daily takings of which were from rupees five to ten a day. Bangrode is a small station, but it is clear that it is used as a supplementary stabling station to Rutlam, when the accomodation of the latter is exhausted, and therefore may, at any time, be required to shelter goods of great value. On receipt of these orders the 72 up was broken into two parts, one part consisting of fifteen waggons being stabled in the dead end siding, the other consisting of the remainder of the train being stabled in the refuge siding. The shunting operations occupied from half to three quarters of an hour, and during that time no signs of fire were noticed. It will be noted that as soon as the first fifteen waggons had been sub-tracted from the train, the engine, if it had completed the shunting from the rear, would have been the guard s van and seventeen waggons off the burnt truck, and if from the other end 27 waggons off it. In neither case would it have been within a distance which, in the opinion of the heads of the defendant-railway, is dangerous. But presumably in the course of the shunting it must have passed the burnt waggon more than once, at fairly close range. When the whole 72 up was thus stabled at Bangrode the- engine drew off and waited on the main line at some distance, say roughly 100 yards, from the burnt waggon, with steam up, waiting for permission to proceed to Rutlam. It appears to have stood so for about an hour and a half in all before it got line-clear and went off with the engine driver and guard. That was about 1-30 on the morning of the 17th. The actual hours and minutes are of no importance and I am only giving the Times approximately. The Deputy Station Master was on duty during the night and superintended the shunting, but neither he nor anyone else detected any fire. Considering where the engine stood, and how long it stood there, and considering that the driver, fireman and guard at any rate were probably awake, it is in the highest degree improbable that the fire which subsequently broke out and consumed all these bales but thirteen could have made much headway at that time, or been visible from without the waggon. The 63 down train from Rutlam reached Bangrode about two hours late, say at 3-30 a.m., on the 17th; and the driver of that train saw smoke rising from waggon 13024 at a distance of about quarter of a mile from the station. It was a dark night, no moon, and I doubt whether it is possible to see smoke in such circumstances, unless it is slightly incandescent, and shows a certain amount of glare or light as well as mere smoke. But the engine-driver declares that he did not see any flame or light, only smoke. There is a conflict of evidence, (and a great deal too much has been made of it) whether the fire was first seen by the pointsman sent to prepare the points for the incoming 63 down or by the driver of that train, and who first reported it to the Deputy Station Master. In my opinion it makes not the slightest difference first saw and who first repotted the fact that the wagon was on fire, for it is common ground, and that is all that is important that the fire was first seen and reported when this 63 down was entering Bangrode at about 3-30 a.m. The engine of the 63 down was at once utilized to isolate the burning waggon, while all available hands were summoned to help in putting out the fire. Unfortunately the only fire quenching appliances available at Bangrode were six hand-buckets and a watering can. There is a well with a rope, but the water was very low and it is obvious that little could be done with such means to cope with such a fire as had now developed in this waggon load of cotton. While the waggon was being isolated it appears that three or four men got on the top and managed to dislodge 25 or 26 bales, with their hands and crowbars. Some of these were already on fire. But as the flames rose, the men could no longer stay on the waggon, and these attempts at salvage had to be abandoned. But if it be true that these men were able not only to mount the waggon but actually to work on it for some time (and something of the kind must certainly have been done) it follows that the fire could not at that time have seized the whole length of the waggon and probably was confined, as alleged by the defendent-company s witnesses, on the point to centre portion. There is some ambiguity on this point, the witnesses, or some of them, probably meaning by " the middle" of the waggon, not the middle portion of the surface, but the centre of the land. The latter statement could hardly be correct if the company s other evidence as to the complete and effective sheeting of the waggon be true. For it would then have been impossible to see into the centre of the waggon at all, and no fire would have been visible until the flames had burst through the sheeting. Nor is it probable that this would first have occurred at the side, although I suppose it is possible that it might have done. On the question of sheeting the defendant-company contends that this waggon was sheeted with three sheets, while the plaintiffs case is that it was only sheeted with two. The third sheet is not traceable. The sheeting record book of Ujjain has disappeared. In fact it does not appear to have been kept during the first half of April as the local staff was overworked and unable to fill in all the required records. The evidence, so far as Ujjain is concerned, upon this point is purely general. None of the witnesses can pretend to have any definite recollection of this particular waggon, or how it was loaded, or sheeted or sealed. All that that part of the evidence amounts to is that the usual practice is to load sheet and seal in a particular way, and that no waggon loaded, as this waggon was, would have been allowed to proceed had it not been so loaded, sheeted and sealed. That is of course merely begging the question, and all such evidence appears to me to be quite valueless and negligible. But at Bangrode we have the evidence of the staff to the effect that the waggon had three sheets on it, of which the middle sheet was totally consumed, not a rag or vestige of it remaining. Considering that neither of the other two were much burnt that appears to me almost incredible. Of course there are different ways of spreading three sheets of these dimensions over a waggon fourty-five by nine, and loaded to a height of say five feet. But Mr. Pechey s evidence suggested that the third sheet would be used under the other two, and there is other evidence in the case to the same effect, namely, that underneath sheets are first put over the goods and then sheets over these again. Now if that had been the method of loading here, I mean if the third sheet had been put over the central twenty-five feet of the waggon, dropping down say four feet over each side, and then the other two sheets had been placed over it so as to overlap say ten feet on either side leaving a drop for each of five feet over each end of the waggon (and that seems the natural way to employ three sheets of these dimensions upon a load placed in a waggon of the dimensions of 13024), then it is obvious that that central sheet could not possibly have been so utterly destroyed without doing a very great deal more damage to the overlapping sheets on either side, than the evidence shows was done to them. And I see nothing inconsistent with Mr. Pechey s ideas of efficient sheeting in supposing that two sheets would have fulfilled all the requirements of such efficient sheeting. Two sheets twenty-five feet long by seventeen and a-half would of course have covered the waggon from end to end with a drop of two and a half feet at each end and about four feet over the sides, thus having three feet of cotton bales exposed at each end and about one foot at the sides. Mr. Pechey says that he is not much concerned with the sides of such loads, as the chief care of the Company is to protect the surface. But recollecting the manner in which engines come close alongside goods waggons, as one train passes another at a station, I confess I do not see why there is greater risk of conflagration on the surface than at the sides from sparks. But as I shall show later I do not think that this point is really important enough to deserve a twentieth part of the time and labour that has been spent over it during the trial. The fire having been discovered at 3-30 a.m. it appears that the Deputy Station Master at once awoke the Station Master of Bangrode, and, as I have said, everything that could be done was done to extinguish the fire. Somewhere between four and five a telephone message was sent to Rutlam for help, and this was received by the Station Master himself who happened to have come on to the station premises a good deal before his usual hours of duty. The Bangrode staff wanted more water; but Rutlam had no water to spare. There is a water train of eighteen tanks which runs sometimes once sometimes twice a day out of Rutlam to a small watering station called Ghatia to just half way between Rutlam and Bangrode, that is to say, three miles from either, and brings back its tanks filled to supply the water needs of Rutlam. Rutlam is an engine changing station, and of course if its water supply runs out traffic is at a standstill. I cannot in this sketch of the facts go into all the considerations pro and con which weighed with the Rutlam authorities, or have been suggested in argument as being such as ought to have weighed with them, on the subject of sending the water train, immediately the telephone message was received, to Ghatia to fill and go straight on to Bangrode. Had this been done, had it been feasible, and the staff at Rutlam are unanimous in saying that in all the circumstances it was not feasible, the water train might have got to Bangrode by about 6-30 a. m. And as far as I can see having got there it would have been quite useless. An immense amount of time has been spent by the plaintiffs over this point of the water train, probably as a consequence of the result of Lakhichand s case. But the short answer to all this argument is that supposing there had been no difficulties in the way of despatching the water train, and supposing it had been despatched and ranged-up alongside (or as near as it could then get) to the burning waggon, what would have been the use ? By 6-30 the flames must have been at their height: probably no one could have got within fifteen feet of the waggon (vide Storrer s evidence as to the state of affairs when he reached Bangrode, say a couple of hours later) and with tanks and tanks of water available no impression, as far as I can see, could have been made on the fire by tossing buckets of water at it from a distance of fifteen feet. What was needed, what alone would have been serviceable, was not only water in abundance but a hose and pressure pump as well, and there was no available hose or pressure pump at Rutlam, or at any place nearer than Godhra, 115 miles away. I may have to discuss this part of the case in a little more detail later, though I have long ago felt convinced that it really has little or no materiality if it can even be said to be relevant. For the present it is enough to say that the station Master of Rutlam did not send the water train but ordered the Bangrode Station Master to take the drinking water tank off the up train which would reach Bangrode about 10 or 11 A. m. In the meantime the Kotah special had proceeded from Rutlam and found the waggon blazing at Bangrode. That would have been between 6 and 7 A.M. The engine driver gave all the water he could spare from his tender, but this was useless, so he took his train on. Then followed the 17 down mixed, with Mr. Storrer on it. No mention appears to have been made of the fire at Bangrode to anyone on either of these trains, except the guard of the latter, who says (in opposition to all the rest of the evidence on this point) that it was common knowledge at Rutlam before his train left. When the 17 down got to Bangrode between 8 and 9 A.M. the engine was taken as close as it could get to the burning waggon and steam was blown upon it, seemingly more to enable the mixed train to get by than with any hope of putting out the fire. Then the 17 down went on its way leaving the waggon burning as hard as ever. In the meantime two telegrams appear to have been sent from Bangrode, one the formal " to all concerned " and the other, sent later, a special telegram to the Station Master at Rutlam for more water. The "all concerned telegram" certainly suggests that the fire had done its work completely and that there was no hope of saving anything. But the other telegram asks for more water, and this appears to have reached the Station Master shortly after 8 A.M. He thought the best thing to be done, indeed the only thing to be done, in the circumstances was to order the Station Master at Bangrode to arrest the drinking water tank which would shortly come to his station; and this was duly done about 10 or 11 a. m. But when its whole contents had, like the spare water of three previous engine tenders, been thrown at the waggon out of the six hand buckets and watering can, naturally without the least effect, the staff at Bangrode gave the fire up as hopeless, and left the waggon to burn itself out. This it did in about two days from the commencement of the fire. Of the 26 bales which had been flung from the top of the waggon when the fire was first discovered 13 appear to have been saved; the remaining 13 which were left lying about already on fire were burnt and utterly destroyed. As to that the position of the Company might be different had its liability to be determined solely with reference to the manner in which it discharged its obligations not only in the way of taking precautions against risks, but in dealing with the situation when in spite of those precautions the risks had actually occurred. For it is hard to see how had any attention been paid to these smouldering bales lying on the ground, a few buckets of water thrown over them at once would not have finally put them out, and saved them, subject of course to whatever damage they might have suffered before being dislodged from the waggon top.

(2.) Those being in out-line the principal facts, what are the legal rights and liabilities of the parties ? I do not see that Sections 72 and 76 of Act IX of 1890 put a railway company sued in respect of goods entrusted to it for carriage in a better position than a common carrier under the old Carriers Act. Nor do I think it necessary to go minutely into any change which the Act of 1890 may have made in the liability of railway companies, when sued as bailees, as compared with their liabilities before the passing of that Act. For, as it stands, the law appears to be clear. When anyone has entrusted goods to a railway company for carriage, and those goods are lost, damaged of destroyed while in the possession and under the control of the railway, the fact of the loss, damage or destruction is enough to cast upon the company the burden of proving that that loss was not due to any negligence on its part. The standard of negligence is given in Sections 151 and 152 of the Contract Act but no general rule universally applicable can, I think, be laid down as a rule of law defining the amount and quality of the proof in every case which will discharge the railway company s onus. It cannot be a rule of law, though speaking generally, I think it is a very sound rule of right reason, subject to all proper exceptions in special cases, that where the fact of loss, damage or destruction is proved, and the railway company cannot prove the cause of this loss etc., it cannot logically prove that it is not in law itself responsible for that unascertained cause. While on the one hand it is fair argument to say that a bailee who has goods in his sole possession and under his sole control and loses or allows them to be damaged or destroyed must show, first, how the loss or damage was occasioned before he can be heard to say that it is not due to his own negligence, it is going too far in the other direction to maintain that it is a universal rule of law in such cases that where the bailee is unable to assign the true cause of the loss or destruction he must in every case be liable for the value of the goods to the bailor. In every case it is open to the bailee to satisfy the Court, if he can, that although he does not know how the goods came to be lost, damaged or destroyed it certainly was not owing to any want of ordinary care on his part. And this was actually done in the recent case of Lakhichand v. G.I.P. Railway Company (1911) I.L.R. 37 Bom. 1; 14 Bom. L.R. 165. There the defendant-company could assign no cause for the fire, but the trial Court was satisfied that whatever the cause might have been it was not due to the negligence of the defendant-company, and in this view the Court of appeal concurred. The defendant-company in this case has from the first relied, in my opinion, much too confidently on Lakhichand s case as establishing a rule of law that a defendant-company sued, as this defendant- company is sued, may exonerate itself by proof of general care, in dealing with large quantities of similar goods, and proving that that amount of care is usually sufficient to prevent loss, damage or destruction. On the other hand the case is certainly an authority for the proposition that a decree ought not to be given against a railway company sued as bailee for loss, damage or destruction of goods bailed to it, the moment it admits that it is unable to assign the vera causa of the loss. Now what is the actual position at the outset of the case? The defendant- company has received goods to be carried at its own risk. Instead of delivering them, it allows them while in its sole possession and under its sole control to be burnt. Two main questions then arise.-(i) Has the defendant-company proved that it took as much care of the goods from the time they came into its possession to the time when they caught fire as an ordinary person would have taken of goods of the like quality and quantity of his own? (2). When the goods were found to be on fire did the defendant-company take as much care of them, that is to say, did it exert itself as strenuously having regard to the means at its disposal and all the circumstances to put the fire out and save the goods as an ordinary person might have been expected 10 do if the goods had been his own? It will be noted at once that the second question is totally distinct from the first, and, in regard to the proof, has to be dealt with on a different line of reasoning altogether. The defendant-company might succeed, as in fact it did succeed in Lakhichand s case, in exonerating itself so far as the origin of the fire was in question, and yet fail as it did in that case to exonerate itself when the question was of the duty it owed its bailor after the fire had been discovered. And that distinction is also of some importance with reference to Batchelor J. s criticism of the judgment of the Privy Council in the Rivers Steam Navigation Co. v. Choutmull Doogar (1898) I.L.R. 26 Cal. 398: L.R. 26 I.A. 1. With respect I am unable to agree wholly either with the line of reasoning or the conclusion reached by Batchelor, J. in that part of his judgment. Presently I will explain more in detail why. Now in this case the defendant-company comes into Court and professes a total ignorance of how the fire was caused. In effect its case is this. We always take care, as much care as any ordinary owner would himself take, of goods committed to our care for carriage. This is proved by the fact that while we carry enormous quantities of cotton, just as this cotton was carried, in open waggons, we rarely let it get on fire. Tables have been put in for three years to show that the company has lost very little cotton in transport by fire. Therefore, it is contended, we must be exonerated in respect of this particular fire. Now I may at once say that that appears to me an entirely fallacious piece of reasoning. Doubtless a very similar cause was taken by the defendant-company in Lakhichand s case, it proved successful. And the whole defence in this case has been modelled upon the defence in Lakhichand s case. But it can never follow as a matter of law that what satisfied a Judge in one case with special reference to the facts of that case must always satisfy every other Judge in dealing with cases in which the problem may be in many respects different, the facts either more simple or more complicated and the grounds of inference therefore always liable to change. As to the defendant-company s liability for what happened after the lire was discovered that must always be relatively simple and easy to determine compared with the first question, namely, was the defendant-company, in the absence of any known cause, liable for the origin of the fire? And it is clear that if that question be answered in the affirmative the second question would lose all practical importance. Now let me explain in a word or two why I think the very simple reasoning upon which the defendant-company mainly relies, professing to borrow it bodily from Lakhichand s case, is fallacious. Assuming that the defendant- company has carried say 6,00,000 bales of full pressed cotton, in all respects like the full pressed cotton which was burnt in waggon 13024, and carried them safely, with no greater percentage of loss than say 250 bales out of 6,00,000, how is that an answer to the fact that these particular 186 bales were set on fire while being carried by the defendant-company 1 Surely it is rather worse than no answer. For again assuming that exactly the same precautions were taken with these bales as with all other bales, and that in the vast majority of cases the bales reach their destination safely, does it not follow of necessity that since in fact these bales were burnt, the company must have exposed them to some extraordinary danger ? Upon the defendant-company s reasoning it is certain that one of two things must have happened, assuming that their propositions be true. Either the ordinary precautions were not adopted in loading these bales, or they were exposed to extraordinary danger. In either case if the act was the company s-a point I will develop in a moment it appears to me to follow that on the facts thus stated and admitted, to go no further, there is a clear case of negligence made out. I cannot myself see how evidence, that as a rule bales are carefully loaded and in consequence reach their destination safely, can really have any relevance in the defendant s favour, although, no doubt, once believed that kind of proof would acquire a distinct cogency against the defendant-company as making it certain or almost certain (in the absence of any known or even suggested cause external to the company and its servants and machinery) that these particular bales were not treated with that degree of ordinary caution all along the route which has ensured the safe delivery of so many thousand other bales. I have read a great many cases, to which I have been referred, and carefully analyzed their contents, and I have very little doubt about what is the law in cases of this kind. The company as bailee is primarily liable for the loss but it may exonerate itself in two ways. It may, while ignorant of the cause of the fire, show, if it can, that that cause could not possibly be attributable to itself, that in other words it was altogether external and beyond the company s control. I should d always feel that there was a logical difficulty in accepting such a demonstration in a case like that with which I am dealing. But in cases of loss, it might very well be that the bailee might show that he had taken all reasonable care of the goods and yet that some person unknown had stolen them, and so they had disappeared. Here in a sense the cause of the loss is unascertainable and yet the bailee might exonerate himself. Put that could only be by satisfying the Court that the cause of the loss was external to himself, and beyond his control. The commonest case perhaps would be spontaneous combustion if that ever really happens.

(3.) But that again is not truly a case of an unknown cause, for once assigned and believed it is a complete and efficient cause and explanation. But the unknown felonious acts of others (which according to high authority ought never to be assumed), again narrowing the ground of this particular species of defence, or acts of others in no sense felonious but merely careless and guessed at as a cause, almost exhaust the category of unassigned causation external to the defendant- company itself which would be likely to be acceptable in a Court as a sufficient possibility, and when consistent with the proof of ordinary care probability, to exonerate the bailee. Second, the bailee while ignorant of the vera causa might point to the fact that he had taken such precautions against risk, had dealt with the goods entrusted to him with such care, that whatever the cause might be and although attributable to his own act, yet it must be presumed to have been of such an uncommon, or of such an unpreventable, kind that he ought not to be held responsible for it. But such a defence could, I apprehend, only be logically (if ever logically) established by the virtual exclusion of all causes of an ordinary kind attributable to the bailee or his servants or machinery.