CHOTELAL Vs. G. I. P. RY. COMPANY

JUDGEMENT

(1.) JACKSON , A.J.C. 1. The plaintiff-appellant Chotelal Varma is a Sub-Inspector of Police, who has sued the G.I.P. Ry. for damages amounting to Rs. 10,100 on account of injuries caused to him while he was travelling in a 2nd Class carriage from Jalamb to Malkapur. The lower Court has dismissed his suit, finding that there was contributory negligence on his part.

(2.) THE facts as found by the lower Court are that the plaintiff was sitting with his elbow protruding from the carriage window when another train passed with a door swinging open, which struck the plaintiff's fore arm and caused the injuries for which damages are sought. As the lower Court has found that there was negligence on the part of the railway company, the company has raised the question again in answer to the appeal, and I propose to consider that point first. I have been referred to Bromley v. G.I.P. Ry. Co. [1900] 24 Bom. 1 for the proposition that leaving a railway carriage door open is negligence on the part of the company, but that does not mean that the fact of an open door concludes the matter. In Dullabhji Sakhidas v. G.I.P. Ry. Co. [1910] 34 Bom, 427, it has has been laid down that the fact that a door is open on a moving train is evidence of negligence on the part of the company, but not conclusive proof. That a door was open is at any rate prima facie evidence against the company, and it rests on the company to prove that the door was not open owing to negligence on the part of its servants. In the present case the only evidence is that of the Guard, W.P. Perrin (D.W. 4), who says that after the train of which he was in charge left Biswa he exchanged signals on both sides with the driver and the brakeman and did not notice the door of any carriage on the offside open. He admits that it was dark at the time, and I cannot regard his evidence as sufficient proof that all due precaution was taken to see that the door was properly closed before the train left Biswa. I must hold that there was negligence on the part of the railway company when the train reached Nagpur. L.J., Rajput (D.W. 5) the train examiner, found that the door which had caused the injury bad come off the top hinge, the middle hinge was a bit loose, but was still holding, and the third hinge was firm. Evidence has been given for the plaintiff to show that both the upper hinges had given way before the train left Malkapur. But I am unable to believe that evidence in view of what the train examiner has said. It is shown by the inspection note recorded by the train Court and by the evidence of Mr. Horsfield, Divisional Transportation Superintendent (D.W. 6), that no greater danger arose from the fact that the open door was held by two hinges only out of three, and even if it be taken (a point by no means clear) that the hinges were damaged before the accident I do not think that the company is necessarily guilty of any greater negligence.

(3.) IT is urged that in the present case the plaintiff was occupying a position such as is ordinarily occupied by passengers in Indian Railway trains; he was doing a common everyday act performed by many persons in perfect safety and not negligent. This point of view has been considered in Dullabhji Sakhidas v. G.I.P. Ry. Co. [1910] 34 Bom, 427 and rejected for reasons which seem to me souad. Apart from the fact that there was a notice warning all passengers not to lean out of the windows (and as has been said in Dullabhji Sakhidas v. G.I.P. Ry. Co. [1910] 34 Bom, 427, no distinction can be fairly drawn to the company's disadvantage between leaning out and putting arms or heads out there is an obvious duty on railway passengers to avoid running risk by protruding any part of their persons from the windows.