DULLABHJI S SANGHANI AND ANNA EAMA Vs. GIPRYCO

JUDGEMENT

(1.) These are two consolidated suits by two third-class passengers, on the defendant Company's train, for damages. The plaintiffs complain of injuries received and attribute them to the defendants negligence. The defendants deny negligence in fact and further plead that, if there was negligence on their part, there was contributory negligence on the plaintiffs part disentitling them to recover.

(2.) The facts, which are virtually undisputed, arc, that the plaintiffs were travelling by the i-30 local up train from Matunga to Masjid on the 22nd March 1908. A short way before Masjid station, between Mazagaon and Masjid, the down Nagpur mail passed at high speed. A door of one of the compartments on that train was open and swinging. It caught the projecting limbs of the plaintiffs inflicting very serious injuries. The first question I am to decide is the question of liability. As to the second plaintiff, the defendant contends that he had opened the door and was standing with his arm on the outside sill. About the position of the first plaintiff, there is virtually no dispute. He was sitting with his back to the engine, on a window seat, with his arm resting on the sill. The upper part of the arm naturally projected a little, and just before the accident he was turning to the window to spit, which may have caused the arm to project a little further. But whether it was five or seven inches outside the window appears to me to be of no consequence. The second plaintiff makes a like case for himself. And again the extent to which the limb was outside the window seems unimportant; though it might be important for the defendant to show that he had opened the door while the train was on the track and not in a station, and so voluntarily exposed himself to an unusual risk.

(3.) The defendant Company denies, first, that it was in any way guilty of negligence. I had better, therefore, deal with that contention. If it be found in the defendant's favour, there is an end of the case. The defendant alleges that before the Nagpur down mail left Victoria Terminus the guard in charge of the train went down its whole length closing the doors. It is to be observed that while the train lay at the platform the doors on the platform side were the doors which became the off-side doors as soon as the train was on the open track. There is a statutory obligation on the Company to close all doors. This they say they did. They go further, and point to their own rules by which guards are ordered not only to close but lock all doors on the off-side. Kinsley, the guard in charge of the mail, swears that he entered the carriage to which the door which caused the injuries belongs. It was a compartment reserved for ladies. It was unoccupied. Accordingly, he swears that he put the shutters up, got out, closed and locked the door. He remembers having done this distinctly. Munro, the rear guard, Kinsley's subordinate, corroborates him. He swears that he saw Kinsley going down the train closing and locking the doors. Dr. Fonseca, a passenger by the train, has also been called to swear to this. But I cannot attach much value to his evidence. It is quite possible that he may have seen Kinsley closing some doors and yet not have seen him close this door. This evidence shows that all the off-side doors were closed and locked in three minutes or so before the train started. I confess it seems to me a little doubtful whether that would prove conclusively that the doors were all closed and locked when the train started. Certainly it would not in England, where belated passengers seek to enter trains up to the last moment, and railway officials may open doors that have been closed to let them in, and forget to close and lock them again. In the particular case, however, there were no lady passengers and the compartment was, in fact, empty. It is still possible that after Kinsley closed and locked the door, assuming that he did, some passenger got a member of the platform staff to open it for him, and then finding it was a lady's reserved compartment, rushed off, and so the door got left open. The alternative suggest in that a passenger with a railway key came up, opened the door, and left it open seems to me too improbable. The truth appears to me to lie between two possibilities neither of which is highly improbable. The first is that Kinsley is mistaken, though he had closed and locked this door, but had not. The other is that, after he had done so, some member of the railway staff opened the door and forgot to close it. In either case, there would be evidence of negligence to go to a Jury. The fact that a door on a moving train is open, is evidence of negligence on the part of the Company. Gee V/s. Metropolitan Railway Company (1873) L.R. 8 Q.B. 161; Richards V/s. The Great Eastern Railway Company (1873) 28 L.T.N.S. 711. Evidence only, be it observed, is not necessarily a conclusive proof. And a very great Judge doubted whether the fact alone ought to be even evidence of negligence. Taking that, however, to be settled as matter of law, I should find on this point that there was negligence on the part of the Company in respect of the open door on carriage 1846 of the Nagpur down mail. For, whether Kinsley forgot or omitted to close and lock the door, or whether another servant of the Company opened it after Kinsley had locked it and forgot to close it, I apprehend that the Company would be equally affected with negligence. It is not alleged by the plaintiffs that there was any defect in the lock or catch of the door, so that once it was closed and locked it could not possibly have opened of itself. And it is not the Company's case that any one unauthorizedly opened it after the train had left Victoria Terminus. I do not accept the suggestion that any one did so unauthorizedly by the use of a private railway key in the three minutes which intervened between Kinsley having, as he swears, closed and locked the door and the train starting.