Authored By : OKinealy, Francis Maclean, Henry ThobyPrincep, T. Ameer Ali

OKinealy, J.

1. In this case the plaintiff is the father and theadministrator of the estate of one Atindra Nath Mookerjee, who was fatallyinjured on the 27th of April 1896, while travelling as a passenger on the EastIndian Railway between the stations of Secundrabad and Dadri. Atindra NathMookerjee died on the 5th of May 1896 of the injuries sustained by him, and theplaintiff charges that his death was caused by the neglect of the defendants.The relief claimed is of a two-fold character. The sum of Rs. 7,000 is claimedas damages for the loss resulting to the plaintiff from the death of his son,and a further sum of Rs. 8,000 is claimed by the plaintiff as damages for lossto the estate of Atindra Nath Mookerjee, such loss also having been occasionedby the neglect of the defendants. As to this latter portion of the reliefclaimed by the plaintiff I may say at once that no evidence has been given toshow that any pecuniary loss or damage was caused to the estate of Atindra NathMookerjee by the neglect complained of, and I therefore, dismiss this portionof the claim.

2. The case for the plaintiff is that on the 25th of April1896 Atindra Nath Mookerjee purchased from the defendants a 3rd class ticketfrom Bally in the District of Hooghly to Rawalpindi and proceeded on hisjourney; that on the 27th of April while on that journey the 3rd class carriagein which Atindra Nath Mookerjee was being carried caught fire owing to thenegligence of the defendants and he was severely burnt in different parts of hisbody; that he was further injured by falling through the burning floor of thecarriage, and in consequence of these injuries he died on the 5th of May 1896.

3. Specific charges of the negligence and improper conduct,which the plaintiff brings against the defendants are set forth in the 2nd and3rd paragraphs of the plaint. They are, first, that the fire was caused by a,number of fire-works namely, bombs, which through the negligence and improperconduct of the servants of the defendants and in violation of the rules in thatbehalf had been allowed to be carried in the carriage by certain persons otherthan Atindra Nath Mookerjee; secondly, that at the time the fire took place thedoors of the carriage were locked owing to the negligence and improper conductof the defendants, and that thereby Atindra Nath Mookerjee was prevented fromescaping from the burning carriage; and thirdly, that owing to defectivearrangements in the connection cord and other appliances of the train to whichthe carriage was attached (such defective arrangements being the result ofnegligence and improper conduct on the part of the defendants) there was greatdelay in bringing the train to a stand and by reason thereof the escape ofAtindra Nath Mookerjee from the burning carriage was prevented. Finally thereis a general charge that the death of Atindra Nath Mookerjee was caused by thewrongful act, neglect or default of the defendant Company and their servants.

4. The defendants do not admit the plaintiffs right toinstitute this suit, or that they entered into any contract of carriage withAtindra Nath Mookerjee. They deny that they or their servants were guilty ofany negligence, or unskillful or improper conduct regarding him. They deny thatthe doors on both sides of the carriage were locked at the time the fire tookplace, and they also deny that the arrangements in reference to the connectioncord or any other appliances of the train were in any way defective. The secondparagraph of the written statement is as follows: "The defendants admitthat on the 27th of April 1896 certain fire-works or bombs exploded in a 3rdclass carriage forming Part of the train known as the No. 5 up Bombay mail atmile No. 926 1/4 on their Railway between Secunderabad and Dadri stations, and severalpassengers in the said train were injured by the said explosion, but they denythat the said explosion was due to any negligence or improper conduct on thepart of themselves and their servants or that their servants allowed orpermitted the fireworks and bombs to be carried by any person in the said trainas alleged in the second paragraph of the plaint."

5. From the evidence given at the hearing it appears thatAtindra Nath Mookerjee, who was the son of the plaintiff, was a clerk inGovernment Service in the Arsenal at Rawalpindi. He was on leave of absence inthe month of April 1896 during which time he lived with his father at Agarparahin the District of the 24-Pergunnahs. On the 24th of April 1896 he proceeded tojoin his appointment at Rawalpindi. On that day he went to Bally from Agarparahand stayed the night in the house of Sarut Chunder Chatterjee, the husband ofthe plaintiffs sister. On the next day Atindra Nath Mookerjee left forRawalpindi by the train leaving Bally at about 2 oclock in the afternoon. Heobtained a 3rd class ticket for the journey which was purchased for him bySarut Chunder Chatterjee. This afternoon train is called the No. 5 passengertrain, and it preserves that name all the way from Calcutta to Tundla near Agrawhere the Indian Midland Railway joins the Bast Indian Railway. At that placethe No. 5 passenger train becomes the No. 5 up Bombay mail, which name itretains from Tundla on to Ghaziabad if not during the whole of the journey onto Kalka. At Tundla there are extensive changes made in the No. 5 up passengertrain. The changes that were made in the train by which Atindra Nath Mookerjeewas travelling appear to have been as follows: The engine which had taken thetrain from Calcutta to Tundla was taken off and another engine known as No. 96class F was attached to the train. Two carriages, one belonging to the GreatIndian Peninsular Railway and another to the Indian Midland Railway, wereattached to the rear of the train; a brake-van belonging to the Indian MidlandRailway, which was found to be defective at Tundla, was taken off and anotherbrake-van substituted and the train was furnished with a communication cord.One end of this cord was attached to a steam whistle on the engine and theother to a wheel in the guards van at the rear of the train. When the trainwas finally made up at Tundla it consisted of the engine No. 96 with itstender, both of which were fitted with hand brakes, a brake-van also fittedwith a hand brake, fourteen carriages of different classes belonging to theBast Indian Railway Company, two carriages belonging to the other lines which Ihave mentioned above and the guards van at the end of the train. Before thistrain left Tundla the communication cord was tested and found to be in goodworking order, and so far as I can gather from the evidence the train, when itleft Tundla, was in a fit condition for the journey before it. On the 27th ofApril 1896 the train arrived at Aligarh about noon; there it stopped 10minutes, after which it proceeded on its journey to Secunderabad where itarrived shortly before 2 oclock in the afternoon. It then proceeded on towardsDadri, and it was on the way between these two stations when the fire broke outwhich caused the deaths of Atindra Nath Mookerjee and eleven other persons. Atthis time the train was running on a down grade of one in five hundred at aspeed of 33 miles an hour.

6. Leaving aside for the moment the documents which havebeen put in evidence as throwing light upon the occurrence of the fire, threewitnesses have been examined with reference to it on behalf of the defendants.These are William Henry Dorry, a permanent way inspector in the employment ofthe defendants, who was travelling as a passenger in the train, William Gibson,the driver of the engine, and Carapiet John Hyrapiet, the guard of the train.There are also in evidence the statements of these witnesses made upon anofficers joint inquiry into the cause of the accident which was held atGhaziabad on the 1st May 1896, and there is also the statement of Noor Ally,the brakesman of the forward brake-van who was also examined upon that inquiry.Derry seems to have been the first person who noticed the fire. He was in asecond class composite carriage which was the fourth vehicle from the rear ofthe train. Two carriages belonging to the Indian Midland Railway and the IndianPeninsular Railway were the only carriages between him and the guards van. Hesays that the first thing he noticed was a smell of oily burning jute; that uponperceiving this he looked out of the carriage on both sides along the axleboxes thinking an axle box was running hot, but he saw nothing. About twominutes afterwards a volume of smoke passed the carriage in which he wassitting. He jumped up, and as he did so there was a loud explosion. He lookedout and saw a ball of fire drop opposite the carriage in which he was on theright-hand side. He then goes on to say: "I immediately opened thecarriage door seeing there was something seriously wrong. With my face in thedirection of the engine I stooped and caught the cord and pulled it towards me.I pulled the cord into the carriage with me as much as I could with the objectof sounding the whistle. I pulled in eight or ten feet. I then released thecord as it was useless my hanging on to it, having done all I could. I thenlooked to the guards brake and saw him exhibit a red flag. I pulled in thecord that the slack might be on the brake-van side. I did not hear the whistle.When pulling in the cord I heard the noises of the passengers. When I saw thered flag I motioned to the guard to apply his brake and wind up the cord. Hemotioned back to me that he had done so. Seeing the confused state of thepassengers I got out and walked to the rear brake-van on the foot-board tellingthe passengers not to be alarmed as the train was coming to a stand. I noticedthe speed slackening when I got out of the carriage to go back. I saw the ballof fire at mile 925, telegraph post 16, gate No. 36. I went along the foot-boardsback to the rear part of the brake. As soon as the train slackened speedsufficiently to allow me to run faster than it was moving, both I and the guardjumped out and ran ahead so that by the time the train had come to a stand wewere practically opposite the burning vehicles. Before the train stopped thepassengers were tumbling or jumping from the train. They were either tumblingor jumping I cannot say which it was. I cannot say exactly where the firstperson fell out of the train. I can say where he was picked up, about 925,telegraph post 20. The train came to a standstill at 926, telegraph post 15,nearly a mile from where I saw the fire."

7. Hyrapiet, the guard, says: "A loud report soundingfrom the front part of the train first attracted my attention.... As soon as Iheard the report, I looked out and saw smoke issuing from the centre part ofthe train. I at once applied my brake and then pulled the communication cord.Then I took my red signal flag and waved it towards the driver. I opened thelobby door and put out the flag on the right side. I observed the permanent wayinspector Mr. Derry beckoning me to put on my brake. He was in the third orfourth carriage from the rear brake. I observed men jumping out of the train.When I saw the men jumping out, I knew there was a serious accident, somethingradically wrong. I also then noticed men on the foot-boards. In the meantimethe train slackened speed and came to a stand. It was just a few posts pastmile 926. Before the train came to a standstill I jumped from the brake-van,ran towards the front part of the train, and saw the postal van and a thirdclass carriage on fire. I immediately detached the third class carriage fromthe rear part of train and signalled to the driver to pull up the train. Beforeuncoupling the rear part I had seen Mr. Derry. He was standing by. I saw thedriver coming from the engine. He said something to Derry and then went back tothe engine. Then I told the brakes-man to detach the two burning carriages fromthe front portion of the train. He did so, and I signalled to the driver topull up ahead."

8. The account of the accident given by William Gibson, thedriver, is as follows:

The whistle was opened wide. That was the first thing Inoticed. I looked back without altering my position and saw the brakesman inthe front brake showing the red signal. I immediately shut off steam and putthe tender brake on, at the same time telling my second native fireman to putthe engine brake on. When I bad tightened up the tender brake I looked backupon that side of the train. I saw a number of people on the foot-boards ofsome carriages. I stepped to the left-hand side of the engine, reversed thelever, opened steam to the cylinders and steam to the steam-sanding gear. Ithen looked down on the left-hand side of the train and saw flames issuing fromsome of the carriages. As the engine slackened speed I jumped off and wentback. Where I saw people standing on the foot-boards was towards the centre ofthe train. The brakesman was showing the red flag. I looked back on both sidesof the train. I do not remember seeing the guard when I looked back. The placewhere I jumped off was on mile 926 near a culvert. I cannot tell exactly whereby reference to the telegraph posts. After I got down, the train may have goneabout ten yards. It was about 500 yards from the place where the whistlesounded to the place where the train stopped. I did not notice at the time whatmile we were on when the whistle was sounded. I ascertained that afterwards,when we got to Ghaziabad, I enquired and got information from some one else.When I jumped off the engine and went back, I met the permanent way inspectorMr. Derry. I told him to detach the burning vehicles and I would draw the trainup. He said he knew what to do and told me to go back to the engine and hewould give me the signal. I met him seven or eight carriages from the engine. Iwent back to the engine and having received the signal from both Derry and theguard, and seeing that the passengers were clear off the vehicles, I drew thefront part of the train for about fifty yards when I got the signal to stop.The burning vehicles were then detached from the front part of the train. Ireceived signals and drew that portion of the train another fifty yards when Iagain received signals to stop.

9. According to the evidence of Mr. Derry, the explosionoccurred on mile 925 at telegraph post No. 16, gate No. 36, and the trainstopped with the burning vehicles at mile No. 926, telegraph post 15, nearly amile from the place where he saw the ball of fire. According to the evidence ofGibson, the train was drawn up to a standstill within 500 yards of the placewhere the whistle sounded. Assuming that he means 500 yards from the placewhere his brakes came into full action, even then the train must have proceededabout a thousand yards after the explosion occurred before the driversattention was attracted, and this delay has not been clearly explained. I aminclined to think that neither Derry nor the guard acted with the promptitudetheir evidence would seem to show, but it must be remembered that from theexplosion to the stopping of the train was hardly 2 1/2 minutes. Allowance mustbe made for the surprise of the moment, and a very slight delay in takingaction would account for a good deal of the time during which the connectingcord remained unused and the whistle silent. This delay may have been partlydue to the fact that the guard stopped to apply the brake to his own van beforepulling the communication cord, or it may have been partly due to interferencewith the communication cord by Derry and the other passengers in the train,when the accident occurred. Indeed the connecting cord itself may have becomedefective owing to the explosion, for though the whistle was undoubtedlysounded, it is not clear by whom the cord was pulled at the time or from whatpart of the train that was done. I can find nothing to blame in the action ofthe train officials from the time the explosion took place till the train cameto a standstill. I think they did the best they could under the circumstances.

10. What happened after the train stopped and the burningcarriages were detached was as follows: The front part of the train was takenby the driver Gibson to Dadri Station. He says it was ten or twelve minutespast two in the afternoon when the train was brought to a standstill; thatabout twenty minutes after that he left for Dadri and reached there at aboutquarter to three. From there he sent two telegrams to Ghaziabad for additionalcarriages to convey the wounded passengers and for medical assistance. Havingdone this, he proceeded back to Dadri with a bhistee and some porters, arrivingthere at about a quarter to four. In the meantime what happened at the scene ofthe accident was this: The guard and some of the European passengers went backon the line towards Secunderabad for the purpose of picking up the wounded, butfinding it impossible to carry them back to the train the guard and Derry withthe assistance of the European passengers and some coolies shunted the guardsvan back to gate No. 36 which Derry fixes as the place at which the explosionoccurred. What took place with reference to assisting the injured persons istold by the guard Hyrapiet and by Derry. Hyrapiet says: "After the firstportion of the train left for Dadri I went with some military officers who werepassengers in the train to search for the persons who had fallen out of thetrain. I found a man very badly burnt. He was lying near the fencing wires.This was about 150 yards from the brake-van and about 30 or 40 yards furtherfrom the burning carriages which were the 7th and 8th carriages from the rearof the train at the time of the accident." Hyrapiet then goes on to say:"There was an officer with me, I think Captain Maclean, when I found outthe first man. There was a Major Grant also there. This officer Maclean wentwith me when I went to search for the men. There were three coolies, but noother Europeans. I volunteered to carry the wounded man to the brake-van. Theofficer picked up the man and put him on my back and I carried him to thebrake-van. I dont know the name of this wounded man. Captain Macleanaccompanied me to the van. We got hold of a blanket, put the man into theblanket, and lifted him by holding the four corners of the blanket into thevan. I was completely done up with the heat and the picking up of the man. Iconsulted the military officers and decided that it was advisable to detach thevan and push it along the line. I did this with the assistance of the cooliesand the military officers. There was another man carried by a military officerin his arms. This other man was found over the fencing wires about 50 yardsfrom the man I picked up. He too was carried to the brake-van. We hand-shuntedthe brake-van down the line and picked up the men who were lying on both sidesof the line, and put them into the van. I picked up about 14 or 15 altogether.We shunted the brake-van down to gate No. 36; that was where I originally heardthe report. I say that because there was a third class carriage door lyingthere. The report which I heard was the bursting of a third class carriagedoor. The doors and some of the splinters were lying there then, I cannot sayif it was a door belonging to a third class carriage or to the combined postaland third class van. I cannot say if I found more than one door. There was adoor end a lot of broken pieces. They were on one side of the line almostopposite the gate on the right facing Dadri; that would be on the east side ofthe line. There was a passenger completely charred and burnt almost shapelessjust about a few yards from there. He was dead. I thought it best to leave thebody there with a man in charge." Then he says: "I forgot to say thatI found four bamboo bombs which I locked up in my box and gave to the police.These were four pieces of bamboo about six or seven inches long, hollowed inthe centre and the bamboos were burnt. They were slips of bamboo. From what Ipicked up I could say that the diameter of the bamboo was about 2 1/2 inches.At that time I did not know what they were, but the military officer told me tolook after them and lock them up in my box. I could not swear to the exactlength of the pieces of bamboo. I should say it was between six and eightinches. I subsequently made them over to the police. These were picked upalmost where the dead man was, a little past the gate almost close to where thecarriage door was found." Then he says: "An English-speaking Bengaliclerk was picked up half way between the gate house and where the trainstopped. I cant say if there were more Bengalis than one amongst those Ipicked up. I noticed a few Marwaries were there. The Bengali lad was picked upclear of the rails. I cannot say exactly the particular spot. At that point thefencing would be about 18 or 20 yards from the rails." Having got all thewounded passengers into the van the guard tried to relieve the sufferings ofthe wounded, and with the aid of some coolies the van was shunted back to therear portion of the train. By that time the driver had returned with the frontportion of the train from Dadri, and oil was obtained from him for the purposeof putting upon the wounds of the injured persons.

11. Derrys account of the picking up of the wounded anddying is this: After he had sent the driver to Dadri he noticed that one of thepassengers who had jumped out was being picked up by another passenger. Hesays: "I went to his assistance. The guard was there too. The wounded manwas brought into a second class carriage and I attended to him. One of thegentlemen passengers and myself then walked back to attend to the burnt peoplethat were lying on the road. The brake-van was uncoupled and shunted back. Thisgentleman and myself went on ahead and the brake-van followed us. We walkedback to gate No. 36 and gave water to the wounded and shade to those lying inthe sun. My gangmen, line men, they were working close by, they came runningup, they had blankets and we tied them to trees to give shade from the sun. Isaw all the injured passengers; amongst them I saw one young Bengali Babu. Icannot say what his name was. There was only the one Bengali injured. He wasabout 40 or 50 yards from the gate No. 36 on the Ghaziabad side. He was lyingon the left-hand side in what we call the three foot way. That would be about 6feet from the rail on the left-hand side of the line. He was conscious. I spoketo him, he spoke to me. I gave him some water and he said I had saved his life.I noticed all his body from above his neck down to his waist all was burnt. Hewas put into the brake-van along with the others." Before all the woundedwere picked up, Derry went back and got oil from the driver which he sent backto the brake-van where the wounded were lying. He then attended to the line.

12. Atindra Nath Mookerjee himself made two statements withregard to the accident, one on the 28th of April, and the other on the 30th.They were taken down by Inspector Fitzpatrick of the Government Railway Police,and these statements are to the effect that he was in the carriage where theexplosion occurred; that it was an explosion of fire-works which were beingcarried in the compartment in which he was, and the effect of the explosion wasthat the seats and planks underneath the carriage gave way and he was throwndown senseless. He says that he did not see the fire-works in the compartment,and was not aware of their presence until the explosion took place. There weresome 12 or 14 passengers in the compartment with him. The two statements do notagree in respect to the place in which Atindra Nath Mookerjee was at the timeof the accident, and when we consider his condition at the time they were madeand the extreme suddenness of the accident, very little definite informationcan be expected from them. In the first statement he says that he was in acompartment in the front of the post-office van, in the second statement hesays that the compartment in which he was travelling was behind the post office,and I am satisfied that the second statement is true. None of the witnesses whowere examined at the trial can speak to the compartment where the explosiontook place, but it is quite clear that when the train came to a standstill, thepost-office van and the carriage to the rear of it were in flames. The frontpart of the post-office van, though filled with smoke, was not in a blaze atthe time the train came to a standstill, nor was the rear of the 3rd classcarriage immediately behind, although the front part was. We have theadditional fact that there was a strong nearly head wind against the train, theeffect of which would be to drive the fire to the rear instead of the front.Taking the whole evidence into consideration, I am of opinion that the explosiontook place in the 3rd class compartment in the rear of the post-office van.

13. As to the cause of the explosion I have no doubt that itwas caused by the fire-works which were carried by one or two of the passengersin the compartment. It was suggested for the plaintiff that the gas cylinder,which was carried in the postal-van, was defective, and that it was the gas inthe cylinder which exploded and caused the accident; but I believe that theexplosion of the gas cylinder took place after the train came to a standstilland not before.

14. It was contended for the plaintiff that the evidenceshowed that the communication cord was defective and had failed to sound thewhistle when pulled, and that in any case steps had not been taken in proper timeto bring the train to a standstill. Now as I have already said I believe thatthere was a considerable delay in attracting the drivers attention, but I donot believe the cord was defective before the explosion. It was as I have saidtested and found in good order at Tundla, and there is nothing to show it didnot continue in good order till the explosion occurred. That the whistle wassounded by the communication cord being pulled Mr. Gibson swears to and Ibelieve him. He impressed me as being on the whole a careful and accuratewitness. Who was pulling on the cord when the whistle was sounded is not clear.If the communication cord was not defective before the explosion, which was thecause of the accident, no defect which could be attributed to the explosionwould, I think, be sufficient to support this part of the plaintiffs case; buteven if I am wrong on that view it does not seem to me that the plaintiffscase would be advanced in the least. Assuming the explosion to have taken placeat gate No. 36, I think it is clear that Atindra Nath Mookerjee either fell outof or tumbled out of the train within half the distance from that gate to wherethe train came to a standstill, so that even if the train had been brought to astand within half the distance in which it was, the effect so far as AtindraNath Mookerjee is concerned would have been the same. There is no evidencebefore me to show that his death was due in any respect to injuries caused byhis falling out of the train. It was solely due, as I gather from the evidenceof the doctor, to the injuries which he received from the burning, that is tosay, it was due to the injuries which he received while in the carriage at andafter the explosion occurred, and so far as I can see no quickness in stoppingthe train could have prevented those injuries.

15. It was also said that the brake power upon the train wasinsufficient. As regards this, the evidence satisfies me that the brake powerwas ample for the train, and that even had the train been fitted with the steambrakes, as it was contended for the plaintiff it should have been, there wouldnot be more than 5 or 6 seconds gain in stopping the train, and I do not thinkthat additional gain would have in any respect saved Atindra Nath Mookerjee fromthe injuries he received and which were the cause of his death. It is true thatthe Agent of the East India Railway seems to have considered it a matter ofregret that the engine had not been fitted with steam brakes, and that wasrelied on before me as an admission that the brake power was insufficient, butI am inclined to place more reliance on the evidence of the practical men whowere called at the trial than to the remarks on this subject contained in thereport to the Directors. It was also said that the engine itself was of anobsolete type and was insufficient, but I do not think the plaintiff has madeout a case for relief on this ground. Neither do I think that the plaintiff hasmade out a case on the ground that the doors on both sides of the train werelocked at the time of the accident. That, I believe, was not the case. It istrue the evidence shows the carriage doors were provided with catches at thebottom to prevent the doors from flying open and these catches would in theordinary course of things be fastened, but I cannot hold that the use of thesecatches which were provided for the safety of the passengers is evidence ofneglect or default on the part of the Railway Company, merely because they mayhave been the cause of retarding the escape of the passengers from the burningtrain.

16. It was also contended by the plaintiff that great delaytook place after the accident in helping the wounded and in providing themedical assistance, and it was suggested that this delay had contributed to thedeath of the plaintiffs son. I do not think the suggestion is well-founded.Besides, it forms no part of the case made by the plaintiff in his plaint, andI cannot, therefore, take it into consideration.

17. One important matter still remains, and that is as tothe causes which led to the explosion. I gather from the evidence that thefire-works were taken on the train at Aligarh (which station was reached atnoon on the 27th) by two passengers, father and son, named Ahmed Ally and GolamHussain. It appears that between Aligarh and the scene of the accident thepassengers smoked in the compartment. That seems to be in accordance with therules of the Company, and the evidence seems to point to this that the smokingwas in some way the cause of the explosion. Golam Hussain appears to have beenkilled on the spot, and upon him was found a piece of paper. This piece ofpaper when taken from the body of Golam Hussain was given to the guard Hyrapietand by him handed over to the Police. The Railway Police Inspector, who madethe investigation into the cause of the accident, arrived at the place where itoccurred in the morning of the 28th. He says in cross-examination that he founda ticket and an order from a zemindar of Sonepet ordering the fire-works. Heascertained, he does not say how, that they were what are called Sangolas, thatis bombs tied up with rope, and Catherine wheels. He then says: I dontremember if there was anything else.

Q.-Was a list prepared of what you ascertained were thefire-works carried at the time

A.--I dont recollect. I say a list of fire-works wasobtained. I think I saw that list.

Q.--When did you see it How did you see it

A.--I think it was found in the possession of the maker ofthe fire-works who was thrown out dead, and who still held this list and a bagand this order. I did not see the dead bodies. They were disposed of before Icame.

18. And he goes on to say that he got his information fromhis Subordinate Police officers, Railway Police, and, he thinks, from Hyrapiet,the guard of the train. In answer to further questions on this point he saidthat Catherine wheels vary from a foot in diameter to 6 inches, but he did nottry to ascertain what the Catherine wheels carried in the compartment werelike, nor did he personally make any inquiries at Aligarh respecting them. Hesaid inquiries were made under his orders but by whom he does not remember.Then he is asked:

Q.--Did you make any inquiries as to how these fire-workswere alleged to have been carried

A.--Yes.

Q.--How were they carried

A.--They could not be noticed; they were concealed.

Q.--Did you inquire as to in what they were carried

A.--The men were dead.

Question repeated.

A.--No. I could not find out whether they were in baskets orin cloths. As far as I can remember I could get no information as to this.

Q.--You said that they were being carried concealed, Do yousay so because you could not ascertain from anybody if they had seen thesefire-works

A.--I say so because even those who were in the compartmentdid not see the fire-works, including Atindra Nath.

Further on he is again cross-examined on this point.

Did you read the list of fire-works which you say was found

A.--I had it read if it was found. It was in vernacular.

(To the Court)-I cant read that vernacular in which it waswritten. I dont remember to have had it read to me.

Q.--Did you report that a lot of fire-works was beingcarried

A.--I may have done so.

Q.--Did you report that the order giving quantity and so forthhad been found

A.--I may have done so.

Q.--What is your belief

A.--I cant remember at this distance of time what I wrote.

Q.--What is your belief as to the quantities sent

A.--The first idea was all the fire-works mentioned in thelist found were being carried, but it was afterwards found that a part of themwere carried by road and those in the train were samples. I said a lot, my ideawas-(stopped) that means a large quantity.

In re-examination he says:

I said one of these men was the maker of the fire-works. Itwas from his shops the fire-works were going. The man we found on inquiry wasordered to supply them.

Then this is put to him.

Q.--There were no traces of fire-works after the accident.

A.--The guard, I think, picked up the bits.

19. I think that this witness and the guard Hyrapiet wereinclined when they gave their evidence to minimise the quantity of fire-workswhich were carried in the passenger compartment on the 27th of April. In thereport which Fitzpatrick made on the 28th of April he states that it isuncertain where and how the fire commenced; that the injured persons who werethen alive in hospital were too far gone in pain to give clear depositions asto where and how the fire originated. He then goes on to say: "It ispossible the post-office van was first set on fire by a naked light, carelesslythrown match, or a chilam. On the other hand the compartment in rear of thepost-office van contained a lot of fire-works being carried from Aligarh toSonepet against rule and regulation by two persons and whose names are AhmedHussain, the son of Faizbux, and Golam Hussain, the son of Ahmed Hussain,fire-work makers of Jalali, Aligarh. The order on Ahmed Hussain for fire-workswas given by one Kedar Ally Khan of Chikari, Sonepet, and the"--(thereport is here torn but I take the word to be list or order)--"givingquantity and so forth has been found, but both Ahmed Hussain and his son aredead, so no prosecution against them can ensue. But whether the fire in thepost-office set fire to the fire-works or vice versa remains to be proved byinquiry. This important point will be cleared up by the 30th when an officersjoint inquiry will be held."

20. Now it is clear from the evidence of this witness, andhis report, that the first impression of those inquiring into the accident, wasthat there was a large quantity of fire-works being carried in the train thatday, and that impression is supported by the extent of the damage caused by theexplosion, The carriage panels were iron lined with wood, and the force of theexplosion was sufficient to blow out the doors of the compartment to a distanceof 10 feet from both sides of the line. The compartment was completely wrecked,and Hyrapiet in his evidence gives the state of the burning carriages at thetime the train came to a standstill. He says in cross-examination: "At thetime when the train came to a stand no attempt was made to save the mail. Wecould not do anything. The fire had taken such a command over the things thatwe could not do anything, but the whole thing was not ablaze. You couldapproach the two carriages at the ends--the post-office at the front end andthe 3rd class at the Secunderabad end." And Derry in his evidence alsosays that the two carriages were in flames at the time when the train came to astand.

21. Now it seems to me that to do such amount of damage inso short a time there must have been a considerable quantity of thesefire-works in that compartment, and the hearsay evidence, for it seems to be nothingmore, upon which Fitzpatrick relies now as his reason for supposing that a partof the goods mentioned in the list had been sent by road, and that only aportion had been carried in the train is not satisfactory. He suggests thatthey must have been concealed, because Atindra Nath Mookerjee says he did notknow whether the fire-works were in the carriage until he heard the explosion.But there was probably nothing to turn the attention of Atindra Nath Mookerjeeto the luggage carried by any other passenger into the compartment.

22. The evidence, as to the remains of the fire-works whichwere found after the accident also tends in my opinion to show that thequantity of fireworks carried in the compartment was considerable. Hyrapiet,the guard, says that he picked up four bamboo bombs which he locked up in hisbox, "slips of bamboos which were 6 to 8 inches long, the diameter of thebamboo would be about 2 1/2 inches." He picked these up on the 27th andlocked them up in his box. In his evidence before the joint inquiry given onthe 1st of May 1896, when nothing had arisen to cause a desire to minimise thequantity, he stated this--"I picked up on the side of the line threebamboos with holes in the centre called bombs, about 14 inches long, which hadexploded, and other bamboos used as torches for illuminating marriageprocessions, all burnt. Derry in his evidence says that he picked up two orthree fire-work bamboos, about 8 inches long and 1 inch in diameter, wrappedround with a peculiar twine, which had exploded. He says he picked up two orthree on that day and more were picked up the next morning. And in hisstatement before the officers joint inquiry he said he saw several explodedbombs picked up near the gatehouse No. 36, he also picked up some himself thenext morning. Further it is extremely probable that besides the exploded bombs,which were picked up on the line on the 27th and the 28th, assuming that allthose on or near the line were picked up [which is not clear, as no searchseems to have been made for them other bombs and fire-works may have explodedand been consumed within the carriage.

23. On the whole the evidence leads me to the conclusionthat a considerable quantity of fire-works was in the carriage at the time ofthe explosion. An expert witness, who is a pyrotechnist, was called for thepurpose of showing that a small quantity of bombs would be capable of doing thedamage which was done. I do not think this experts evidence is verysatisfactory. But even if a small quantity of bombs would be sufficient to dothe damage that was done that does not necessarily give any reliable indicationof the quantity of fire-works which was carried in addition to the bombs.

24. The question then is whether the defendants areresponsible for the fire-works having been taken into and carried in thecompartment of the passenger carriage as they were on that day, a carriage inwhich it was the practice for the passengers to smoke and therefore to havefire of some kind or another.

25. There can be no doubt that from the moment thosefire-works were introduced into that carriage the lives of the passengers werein danger. The result of the explosion shows that from that moment thecompartment became practically a powder magazine. It, therefore, ceased to befrom that moment a vehicle fit or proper to be used for the purpose of carryingpassengers. The question is, are the defendants responsible for that, and todetermine this question it is necessary to inquire, in the first instance, whatis the duty of the Railway Company with respect to providing for the safety oftheir passengers.

26. In the case of Christie v. Griggs (1809) 2 Camp 79, thefacts were these. The plaintiff was travelling to London as a passenger on astage coach belonging to the defendant when it broke down and he was greatlybruised. The first Court imputed the accident to the negligence of the driver,the second to the insufficiency of the carriage. The accident was caused by theaxle-tree of the coach having snapped asunder, and Sir James Mansfield, indirecting the jury upon the question as to the sufficiency of the coach, statedthat the defendant "did not warrant the safety of the passengers. Hisundertaking as to them went no further than this that, as far as human care andforesight could go, he would provide for their safe conveyance." InRead-head v. Midland Railway Company (1867) L.R., 2 Q.B., 413, and on appeal(1869) L.R., 4 Q.B 379, which was a similar case, the Court, while of opinionthat a carrier does not warrant the safety of his passengers, laid down thatthe obligation to take due care should be attached to the contract betweenthem; and they went on to say--"Due care, however, undoubtedly means,having reference to the nature of the contract to carry, a high degree of care,and casts on carriers the duty of exercising all vigilance to see that whateveris required for the safe conveyance of their passengers is in fit and properorder. "In the case of Ford v. London and South-Western Railway Company(1862) 2 F. & F 730, the plaintiff was injured by the tender of the trainbeing thrown off the line, and one of the causes Was alleged to be thedefective tyre of one of the wheels of the tender. Erle, C.J., in his directiontold the jury: "The action is grounded on negligence. Negligence is not tobe defined, because it involves some inquiry as to the degree of care required,and that is the degree which the jury think is reasonably to be required fromthe parties, considering all the circumstances. The Railway Company is bound totake reasonable care to use the best precautions in known practical use, forsecuring the safety of their passengers." In the case of Burns v. Cork andBandon Railway Company (1863) 13 Ir. Law 543, the Court laid down the principlethat "it is the duty of a carrier to provide for his passengers a vehiclewhich shall be free from defects as far as human care and foresight canprovide, and perfectly road-worthy." In the case of Hyman v. Nye (1881)L.R., 6 Q.B.D., 685, the defendant was a job master from whom the plaintiffhired a landau for a drive from Brighton to Shoreham and back. After havingdriven some way, and whilst the carriage was going down hill and slowly over anewly-mended part of the road, a bolt in the under part of the carriage broke.The splinter-bar became displaced; the horses started off; the carriage wasupset; the plaintiff was thrown out and injured, and he brought an action forcompensation. No fault could be imputed to the horses or to the driver. Thelearned Judge at the trial told the jury in substance that the plaintiff wasbound to prove that the injury which he had sustained was caused by thenegligence of the defendant, and if in their opinion the defendant took allreasonable care to provide a fit and proper carriage (which opinion I may pointout is to be arrived at on evidence given before them, because the jury canonly deal with the facts which are proved at the trial) their verdict ought tobe for him. Being thus directed, the jury found a verdict for the defendant;and in particular they found that the carriage was reasonably fit for thepurpose for which it was hired, and that the defect in the bolt could not havebeen discovered by the defendant by ordinary care and attention. The plaintiffobtained a rule calling upon the defendant to show cause why there should notbe a new trial on the ground of misdirection, and that the verdict was againstthe weight of evidence, and the rule was made absolute. Mr. Justice Lindley inhis judgment, after referring to a number of authorities says: "A carefulstudy of these authorities leads me to the conclusion that the learned Judge atthe trial put the duty of the defendant too low. A person who lets outcarriages is not, in my opinion, responsible for all defects discoverable ornot; he is not an insurer against all defects; nor is he bound to take morecare than coach proprietors or railway companies who provide carriages for thepublic to travel in; but in my opinion, he is bound to take as much care asthey; and although not an insurer against all defects he is an insurer againstall defects which care and skill can guard against. His duty appears to me tobe to supply a carriage as fit for the purpose for which it is hired as careand skill can render it; and if whilst the carriage is being properly used forsuch purpose it breaks down, it becomes incumbent on the person who has let itout to show that the break-down was in the proper sense of the word an accidentnot preventible by any care or skill. If he can prove this, as the defendantdid in Christie v. Griggs (1809) 2 Camp., 79, and as the Railway Company did inRead head v. Midland Railway Co. I L.R (1867) ., 2 Q.B., 413; and on appeal(1869) L.R., 4 Q.B., 379, he will not be liable; but no proof short of this willexonerate him. Nor does it appear to me to be at all unreasonable to exact suchvigilance from a person who makes it his business to let out carriages forhire. As between him and the hirer the risk of defects in the carriage, so faras care and skill can avoid them, ought to be thrown on the owner of thecarriage. The hirer trusts him to supply a fit and proper carriage; the lenderhas it in his power not only to see that it is in a proper state, and to keepit so, and thus protect himself from risk; but also to charge his customersenough to cover his expenses."

27. The cases which I have cited are cases in which thedangerous condition of the vehicle was owing to a defect in some part of thevehicle itself; but it seems to me that the principles laid down in those casesare applicable to the case before me and are those by which I must be governed.A vehicle may become insecure and dangerous as well from having dangeroussubstances placed therein as from a defective wheel or axle or bolt, and maycease to be road-worthy from the one cause as well as from the other, and ifthe causes owing to which in the case before me the carriage in which AtindraNath Mookerjee was being carried by the defendants became insecure anddangerous and unfit for the conveyance of passengers, were causes which couldhave been prevented from becoming effective by care and skill on the part ofthe defendants, then that care and that skill the defendants were bound toexercise.

28. It was stated on behalf of the defendants that theycould not prevent the introduction of the fire-works into the train, and thecase was likened to a person entering a carriage with a box of matches or apiece of dynamite in his waist-coat pocket. But there is no evidence to showthat the defendants had taken any steps to prevent passengers from takingfire-works with them into the passenger trains, and I cannot take the casebefore me as analogous to the case put in argument, the very statement of whichshows how the explosives were concealed. There is nothing before me to show howthe fireworks were taken into the train or that they were in fact concealed.The expressions found in some of the reports that the fire-works were carriedagainst rule and regulation, or surreptitiously or clandestinely, are of novalue as evidence in this case of the manner in which they were taken into thecompartment, nor are the reasons given by Fitzpatrick for saying that thefire-works were concealed there. These expressions are at the most expressionsto the effect that they were being carried without the knowledge of the Railwayofficials.

29. Even where it is shown that the explosives have beenwell concealed as in the illustration put in argument, I think it may fairly besaid that, quite apart from the individual case, due care should have beentaken by the defendants to impress upon their staff the necessity of beingvigilant in preventing the carriage of fire-works, and also to bring home totheir passengers that such an act would be severely punished, because the veryfact of that having been done would, I have no doubt, tend to prevent even thesecret carrying of explosives. It is not, however, necessary to pursue thishypothetical case. In the case before me I am asked to presume that thedefendants took due care to prevent the carrying of these fire-works and thatthe person who carried them concealed them in such a way that they could not bediscovered by the railway servants at Aligarh. I cannot presume these mattersin favour of the defendants where the circumstances are such as to call uponthem to show what care and caution they in fact did take.

30. I was told that every man must be presumed to know thelaw, that it must therefore be presumed that the man who took the fire-worksinto the train, especially as he was a maker of fire-works, knew he wascommitting a penal offence, that therefore it must be presumed he took everymeans to conceal his possession of these fire-works from the railway officials,and that in fact he was successful in doing so. I cannot rest the decision of apure question of fact upon supposition of this character. No doubt every manmust be supposed to know the law, and if Golam Hussain were being sued orprosecuted for introducing these fire-works into the carriage, his plea of ignoranceof the law would be no excuse for his conduct. But I think the maxim is limitedto the determination of the civil or criminal liability of the person whoseknowledge is in question and cannot be legitimately made use of in a case, suchas the present, where the parties are entirely different and distinct from him.Even if he did know the law and knew he was committing a penal offence, thereis no reason why I should assume further that he knew he must carefully concealthese fire-works from the railway officials. He may have acted on the belief(rightly or wrongly entertained) that the railway officials would not interferewith him, and that there was no necessity to conceal the fire-works.

31. That the introduction of a considerable quantity offire-works into a railway carriage is not a thing which may not be prevented bythe exercise of that due care which, according to the principles laid down inReadhead v. Midland Railway Co. (1867) L.R., 2 Q.B., 413; and on appeal (1869)L.R., 4 Q.B., 379, and Hyman v. Nye (1881) L.R., 6 Q.B.D., 685, the defendantsare bound to take, is shown by the course taken by the defendants themselvesafter the accident. In the seventh paragraph of Mr. Drings report to the Agentto the East Indian Railway Company, dated the 6th of May 1896, respecting theaccident and the finding of the officers joint inquiry, he says this: "Anotice has since been issued to the staff to exercise great care in passing theluggage of passengers, and I have already received advice that in two instancespassengers have been detected carrying fire-works: one case at Mogul Serai inwhich a Native Deputy Magistrate is said to be the offender, and a second caseat Burhan." The fact that within one week two cases of the carrying offire-works were detected after the notice was issued to the staff to exercisegreat care, shows that the carrying of fire-works by passengers into thecompartment in which they travel is a thing which may be prevented by theexercise of that high degree of care which the Railway Company are bound toexercise for the safety of their passengers; and if that be so, I am of opinionthat where loss of life and damage has resulted from the explosion offire-works in the compartment of a passenger carriage it should be shown that duecare was taken by the Railway Company to prevent the fire-works being carriedin that manner.

32. The question at issue then resolves itself into this:Was there due care within the meaning of those words as defined in Readhead v.Midland Railway Co. (1867) L.R., 2 Q.B., 413; and on appeal (1869) L.R., 4Q.B., 379, and Hyman v. Nye (1881) L.R., 6 Q.B.D., 685, taken by the defendantsfor the purpose of preventing these two persons, Ahmed Hussain and GolamHussain, from taking these fire works into the compartment with them at Aligarhon the 27th of April 1896 Not a particle of evidence, upon this part of thecase, has been given by the defendants. Their contention is that they are notbound to give any such evidence and they say that it lies upon the plaintiff toshow that they had not taken that due care and caution which they were bound todo to prevent the carrying of these explosives in the passengers compartment.I do not think this contention is sound. If they had, previous to thisaccident, issued instructions to the staff to take care and prevent thecarrying of fire-works, especially during the marriage season, or if as amatter of fact any precautions were in the habit of being taken in the AligarhStation to prevent the carrying of fire-works in the passenger compartment,these are matters peculiarly within the knowledge of the defendants themselves,who have the sole control of the traffic and alone know the methods by whichthat traffic is regulated. It is, therefore, in my opinion the duty of thedefendants to produce the evidence on these matters to show that they hadexercised due care and caution, and that it is not for the plaintiff to showthat they did not. In the case of Christie v. Griggs (1809) 2 Camp., 79, theplaintiff having proved that the axle-tree snapped asunder at a place wherethere is a slight descent, from the kennel crossing the road, that he was inconsequence precipitated from the top of the coach, and that the bruises hereceived confined him several weeks to his bed--there rested his case. Best,Sergeant, contended strenuously that the plaintiff was bound to proceed furtherand give evidence either of the driver being unskillful, or of the coach beinginsufficient. But it was held by Sir James Mansfield that the plaintiff hadmade a prima facie case by proving his going on the coach, the accident, andthe damage he had suffered. That was the course taken in Readhead v. MidlandRailway Co., as I read the report in L.R., 2 Q.B., 413; and it is the coursedirected by that class of cases of which Scott v. London Dock Company (1865) 3H. & C, 596, is one of the best known examples. It appears that the trainwas a crowded train, but it had no more than its proper complement ofpassengers according to the guard, and it has not been suggested that there wasany crowding or confusion at Aligarh Station under cover of which thefire-works might have been introduced into the carriage notwithstanding thevigilance of the railway officials. In fact, so far as the evidence before megoes, there is nothing to show that during the ten minutes stay at Aligarh anypassengers left the train, or that any entered the train except the two whocarried the fire-works. There is no evidence before me to show that thedefendants took any precaution whatever which might have resulted in preventingthe introduction of these fire-works into the passenger compartment at AligarhStation on the 27th April. Mr. Dring, the Traffic Manager, who was called as awitness and who wrote the report I have above referred to as to the precautionstaken after the accident occurred, was not asked a single question on thissubject. I must therefore come to the conclusion that the defendants did notexercise that high degree of care in providing for the safety of their passengerAtindra Nath Mookerjee which the law imposes upon them, and that therefore theyare liable to the plaintiff in this suit for the damages which he has sustainedby the loss of his son.

33. With regard to the amount of damages I take the rule tobe laid down in Narayan Jetha v. Municipal Commissioners of Bombay I.L.R.(1891), 16 Bom., 254. There the Court says: "As regards damages, in casesof this nature, distinct evidence of the loss sustained or benefit expected isnot necessary. The jury may look at all the circumstances of the case andespecially at the position of the parents and age of the child, and call in aidtheir own experience in arriving at their conclusions."

34. Now in this case the father has no settled income. He isabout 48 years of age and suffering from paralysis. He was a schoolmaster, butowing to the disease from which he is suffering he had to give up hisappointment. He also seems to have made some money by writing books, but atpresent he derives no income from that source, and his illness has involved himin debt. He has two other children living, but they are both infants, and itwas to his eldest son Atindra Nath Mookerjee that he seems to have looked forhis main support in future. That that son would be so to the best of hisability no one knowing the customs of this country can doubt. As for AtindraNath himself, he entered Government service in 1894. He was in temporaryemployment till the beginning of 1896, when he was appointed permanently as aclerk in the Arsenal at Rawalpindi, on a salary of Rs. 25 a month. From thistime onward one may, I think, consider that his future career was fairlyassured. He appears to have lived at Rawalpindi in the house of his uncle whois employed in the Commissariat Department there, and to have taken sick leavefor two months in February 1896. He was on his way to rejoin his appointmentwhen he met with the accident which resulted in his death. Inexamination-in-chief the plaintiff said that his son used to send him Rs. 20 orRs. 22 a month. In cross-examination he said "from 1894 he went onremitting me Rs. 10, 15, or 20 at a time, but after being permanent he sent memoney once or twice. He sent me last Rs. 20 or Rs. 22. I cannot Say when itwas." Now I am satisfied that if Atindra Nath had lived he would have beena substantial support to the plaintiff, and looking at all the circumstances Ithink Rs. 1,500 would be a fair sum which the plaintiff should receive asdamages in this case. I say which the plaintiff should receive because indealing with the costs of this suit I think I am bound to see that he shallreceive that sum. If I give the costs of this suit to the plaintiff merely asbetween party and party, his attorney and client costs of this protracted trialwould, in all probability, exhaust the larger portion of it. In similar caseswhere larger damages were given than I feel disposed to give in this case,Westropp, C.J., ordered the defendants to pay the costs of the suit as betweenattorney and client. See Sorabji Ratanji v. G.I.P. Ry. Co. (1870) 7 Bom.,(O.C.) 119, note, and Ratanbai v. G.I.P. Railway Co. (1870) 7 Bom 120, note;and on appeal (1871) 8 Bom., (O. C), 130. I shall follow those precedents inthis case.

35. There will be a decree for the plaintiff for the sum of Rs.1,500 with costs on scale 2 as between attorney and client.

36. From this decision the defendant Company appealed.

37. The Advocate-General.--Even on the findings of thelearned Judge, the appellants are entitled to judgment; but they do not admitthat the findings are properly arrived at.

38. Railway Companies are not insurers of their passengers;so that the facts alleged in the plaint do not constitute a breach of duty onthe part of the appellants. Unless the plaintiff can put his case so high as tosay that the defendants should search every passenger entering a carriage, hecannot succeed in this action. In order to make the defendants liable, theremust be a neglect on their part to take some reasonable precaution; and thebreach of duty alleged should be specifically stated. There must be also ascienter on the part of the defendants; but in both these respects the plaintis demurrable.

39. It is not for the defendants to disprove negligence ontheir part, it is for the plaintiff to prove it; and although a high degree ofcare is required of a Railway Company in the carriage of its passengers, thatcannot mean an impracticable degree of caution. The fact that after accidentsome precaution was taken which was not taken before it is no evidence, byitself, of negligence before the accident--Hart v. Lancashire & YorkshireRailway Company (1869) 21 L.T 261; and in order to make the defendants liable,it must be shown what precaution they omitted which they ought to havetaken.-Daniel v. Metropolitan Railway Company (1871) L.R., 5 E. & I. Ap.,45. The plaintiff must prove the neglect of some duty by the defendants, orwant of due care, or knowledge on their part that something dangerous was beingcarried.

40. It was not possible for the Companys servants toexamine the luggage of every passenger. Section 58 of the Indian Railways Act,1890, provides that every passenger shall, on request, deliver to the railwayservants an account in writing containing such a description of the goods he iscarrying as may be sufficient to determine what freight he may be charged forthem. There is no power to search the luggage; and it is only in cases wherethere are grounds for suspicion, that a package may be opened. It was acriminal offence to take dangerous goods into a passenger compartment and in nocase can the wrongful act of a third party make the Railway Company liable.

41. Mr. Hill on the same side: The appellants did notcontract to carry the deceased safely or securely, but only safely so far asreasonable care and foresight could avail. That does not mean the utmostpossible foresight that a human being could exert. It means all that isreasonably and practically possible-See Nugent v. Smith I L.R.(1876), 1 C.P.D.,423 (437), and that was a case of the carriage of goods, which were completelyunder the carriers control. The expression "utmost possible care"must be construed as the "utmost practicable care "--Moss v. Smith(1850) 9 C.B., 94 (103).

42. As to the legal obligation on the appellants apart fromcontract:The plaint alleges that they allowed fire-works to be carried: but thescienter is wanting. That being so, the legal obligation of the Company must bebased on their knowledge or on reasonable grounds of suspicion. There is noguarantee to one passenger that another passenger carries no dangerous goods.Even if the law had cast that guarantee on the Company, it would keep it withinthe bounds of justice, so as not to impose impracticable duties.--Readhead v.Midland Railway Co. L.R(1867) L.R., 2 Q.B., 413; and on appeal (1869) L.R., 4Q.B., 379. In order to constitute negligence, there must be a legal duty toexercise control, and a breach of that duty. But in all cases reasonableconduct is the ultimate test. The degree of control is the paramount factor indetermining what is or is not negligence. That factor is not merely determinantas to the proof, but it even changes the nature of the obligation. The reasonwhy the liability of a carrier is so much stricter as regards goods than as regardspassengers is because of his greater control over goods. The fallacy in thereasoning of the learned Judge in the Court below lies in the expression"allowed fire-works to be carried," which must be taken to mean thatthe carriage of fireworks was preventable by the exercise of reasonable andpracticable precautions.

43. A Railway Company must assume that passengers are notinfringing the law. A passenger is entitled to take into the compartmentanything except articles forbidden by law; and the Company cannot interfereexcept to prevent, under Section 59 of the Railways Act, a fraud on itself. Nopower to inspect luggage is given unless the Company has reason to suspect thepresence of dangerous goods; and no reason is suggested as against the Company inthis case. It cannot be alleged that the Company were bound to know the realstate of things. For they could only know it by doing an act which they werenot entitled to do, viz., opening the passengers luggage.

44. Whether the occurrence of an accident is per se evidenceof negligence depends on the degree of control exercisable, and on theknowledge not merely of the danger, but the knowledge--derived fromexperience--as to the probability of an accident occurring if due Care be nottaken; mere knowledge of the danger is not enough--Scott v. London Dock Co.(1865) 3 H. & C, 596. Unless both these elements co-exist, the plaintiffmust fail. It is not enough to show that the accident may have occurred throughthe negligence of the defendants servants; the plaintiff must also showsomething that the defendants might have done but omitted to do--Smith v. GreatEastern Railway Co.I L.R (1866) 2 C.P 4(10).

45. If this case had been tried by a jury, the question forthem would have been whether negligence could be predicated, and if so whetherit ought to be--Metropolitan Railway Company v. Jackson IL.R (1877) 3 A C 193 .If the facts proved are equally consistent with negligence or the absence ofnegligence, the Judge must withdraw the case from the jury--Cotton v. Wood(1860) 8 C.B. 568; Briggs v. Oliver (1866) 4 H. & C, 403. In order torender the defendants liable, the plaintiff must show facts more consistentwith negligence than with the absence of it--Toomey v. London, Brighton andSouth Coast Railway Co. (1857) 3 C.B. 146. The plaintiff must prove that thedeath of the deceased was attributable to some negligent act or omission of thedefendants--Wakelin v. London and South Western Railway Co. (1886) L.R., 12 A C41.

46. Again: the plaintiff must prove that the accident wasone which the defendants ought to have foreseen--Gornman v. The EasternCounties Railway Co. (1859) 4 H. & N., 781. No previous accident of thiskind has been proved; therefore there was nothing to show that the defendantscould reasonably have foreseen this accident. The onus of proving knowledge onthe part of the defendants is also on the plaintiff--Welfare v. London, andBrighton Railway Co. (1869) 4 Q.B., 693, where the knowledge in question wasthe knowledge of the condition of the defendants own premises.

47. If, however, the Court should think that the accidentitself is evidence of negligence, then the plaintiff did away with his rights,because it follows that he must have known that the fire-works were taken intothe carriage. All the reports admitted in evidence in the Court below are notevidence at all, and were inadmissible even though not objected to by thedefendants Counsel. All that they show is that a certain person made certainstatements to a public official in the course of his duty; he was not a servantof the Company, but a Government servant; and therefore his admissions (if any)do not bind the defendants. But if the reports are to be taken as admissions,they must be taken as a whole; and if so, they show that the fire-works werecarried surreptitiously by a passenger. Carrying fire-works is a criminaloffence; and we are entitled to assume that the person who took them knew thelaw, because he was in a trade governed by special regulations. The probabilities,therefore, are that he would be extremely careful to carry them concealed. Sothat, even if there be a prima facie presumption in this case against thedefendants, that presumption is rebutted by the evidence and by theprobabilities of the case. Everybody has a right to suppose that a crime willnot be committed and to act on that belief--Baxendale v. Bennett I L.R (1878)3. Q.B.D 525 and even apart from any question of crime, it is surely reasonablefor every man to assume that his neighbour will not do an illegal act, and toact on that assumption.

48. Further, there is no statutory obligation on the RailwayCompany to put up notices warning passengers of the penalties for carryingdangerous goods and, at the time of this accident, the Company were not workingunder rules framed under the Railway Act of 1890, but under the Act of 1879, asthere had not been time to supply copies in the vernacular of the regulationsfor which the Company, without being obliged to do so, had applied to theGovernment.

49. In Cliff v. Midland Railway Co.I L.R (1870) 5 Q.B 258,the accident was preventable, for there the defendants had powers the exerciseof which would have prevented the possibility of accident; and those powerswere exercised after complaints had been made, and after a fatal accident hadoccurred. The jury found negligence; but the defendants moved for and obtaineda new trial.

50. It makes no difference whether the legal obligation onthe passenger is by law or by contract. In this case there was an obligation onthe passenger not to take fire-works into the compartment; and the defendantswere entitled to rely on his performing that obligation--Daniel v. MetropolitanRailway Co. IL.R1871) 5 I., Ap. 45 (60). A passenger cannot impose on theCompany any obligation not laid upon them by law; nor can the wrongdoing of onepassenger impose any greater obligation on them--Degg v. Midland Railway Co.(1857) 1 H. & N., 773

51. If the inspection of luggage is not reasonably possible,the Company are not to be expected to examine all the luggage--Richardson v.Great Eastern Railway Co. IL.R(1876) 1 C.P.D., 342 (344). And in India the dutyof examination would be infinitely more difficult than in England, by reason ofthe numerous religious and caste prejudices. Notice of the presence ofdangerous goods is not to be imputed to the Company--see Bevan on Negligence,2nd edition, p. 1059, and the cases there collected.

52. In Baldwin v. London, Chatham and Dover Railway Co.IL.R.(1882) , 9 Q.B.D., 582, the defendants were held liable because theyadmitted a breach of duty in misdelivering the goods; otherwise, it was theduty of the plaintiff to inform them that the goods were such as to requirespecial care.

53. Mr. Pugh for the Respondent : The issue substantially iswhether there was or was not, such negligence as, contributed to this accident.In the carriage of passengers, Railway Companies are bound to use the utmostcare, and to do everything that human foresight can suggest to secure thesafety of persons using their lines--Story on Bailments, 8th edition, Section601. There is both a common law and a statutory duty east on them. Their dutyas to explosives would be incumbent on them apart from any statute; and how canit be said that they acted consistently with their duty when they allowedgunpowder to be carried in a compartment where they allowed smoking

54. Section 47 of the Indian Railways Act, 1890, empowersthe Company to make rules, and that power is given for the very purpose ofmeeting cases of this kind; but the defendants have not shown that they tookany steps to fulfil their duties in this behalf. Indeed, the section says thatthey shall make rules; but from the passing of the Act until 1895 they made norules whatever. Their suspicion is enough for the exercise of the power ofinspecting luggage; and a package of this kind cannot be looked upon as theordinary luggage of a passenger.

55. True, want of knowledge of law will not excuse any mancharged with a crime; but that is a very different thing from saying that everyman is presumed to know the law--Martindale v. Falkner (1846) 2 C.B. 706 ; 15L.J., Q.B., 91 (94), approved in The Queen v. Mayor and Corporation ofTewkes-bury (1868) L.R., 3 Q.B., 629 And even if people are to be taken to knowthe law they cannot be expected to know the bye-laws. But the defendants askthe Court to presume still further that, if anything is done contrary to thelaw or to their bye-laws, it is done in a secret manner.

56. The evidence shows that the defendants took noprecautions whatsoever at Aligarh with regard to the examination of passengersluggage. When they did issue notices on the subject, the result was that twoprosecutions followed. They suggest that no precautions were possible, so thatthey clearly acknowledge that none were taken.

57. Different considerations apply to cases where a duty isimposed--whether by common law, or by statute or contract--and cases wherethere is no duty-see the authorities collected and considered in Pollock onContracts (5th edition), p. 416 et seq. The doctrine as to scienter has noapplication to the present case. The luggage of passengers was under thecontrol of the defendants, so were the carriage into which it was taken, andthe stations on the line; therefore the presumption of negligence arises. Evenwhere the Companys trains run on another line, they are bound to makeprovision for the safety of a passenger who starts on their line--Foulkes v.Metropolitan District Railway Co. I L.R (1880) 5 C.P.D 157. The case of Wakelinv. London and South-Western Railway Co. IL.R(1886) ., 12 A C 41, isdistinguishable, because there there was no breach of any duty, inasmuch as thepremises on which the accident occurred were not under their control at thetime.

58. Mr. Chowdhry on the same side:The defendants ownevidence proves them guilty of negligence. All that the plaintiff had to provewas that the carriage took fire, that there were fire-works, and that the lineand the tram belonged to the defendants; and there is no question about any ofthese facts.

59. The reports made by the railway officials would beevidence against the defendants; they are reports made by the railway servantsto their superior officers, and in them there was no suggestion of thesurreptitious carriage of the fire-works until the Agent made his report afterreceiving all the other reports.

60. The unusual nature of the occurrence is an element indetermining on whom the onus should fall, and it is unreasonable to throw theonus on the plaintiff. Not only was no evidence produced to contradict therailway inspectors report, but the Company even based their subsequent reporton it, and, therefore, it ought to be taken as evidence against them,especially as they did not object to its going in.

61. Section 54 of the Indian Railways Act, 1890, imposes astatutory obligation to exhibit the conditions for the carriage of goods; noevidence has been given that such a notice was exhibited.

62. The exception in Section 72 of the Act applies only tothe carriage of goods; therefore the common law as regards the carriage ofpassengers would be applicable to the Company.

63. Mr. Hill in reply: The passage cited from Story onBailments, Section 601, lays down the law as it exists in the United States;but it is not English law and goes very much beyond the point at which Englishlaw stops, so far as the acts of a third person are concerned. A RailwayCompany is not liable for the acts of even its own servants, if those acts arenot done in the course and scope of the servants duty--Cobb v. Great WesternRailway Co.IL.R., (1894) A C 419.

64. C.A.V.

Francis Maclean, C.J.,

65. This is an appeal by the East Indian Railway Companyfrom a decision of Mr. Justice P. Okinealy, dated the 8th of June 1898, by whichhe awarded a sum of Rs. 1,500 by way of damages to the plaintiff with the costsof the suit.

66. The plaintiff is the father and administrator of theestate of one Atindra Nath Mookerjee, who was injured, on the 27th April 1896,while travelling as a passenger on the appellants line between the stations ofSecunderabad and Dadri, Atindra Nath Mookerjee was so badly injured that hedied on the 5th of May following. In the Court below, the plaintiff chargedthe defendants with negligence, on the ground that the communication cord wasdefective, that proper steps had not been taken in time to bring the train to astandstill, that the brake power of the train was insufficient, and, in thatsense, defective, and that the carriage doors were improperly locked. All theseissues, however, have been found in favour of the appellant Company; they havenot been urged before us by the respondent, and it is unnecessary further toallude to them.

67. The evidence establishes that Atindra Nath Mookerjee, onthe 25th of April 1896, took a third class ticket from Bally to Rawalpindi;that on the 27th April, while on his journey, the carriage in which he wastravelling caught fire, that he was badly burnt, and injured by falling throughthe floor of the carriage, and subsequently died of those injuries.

68. There can be no reasonable doubt, upon the evidence,that the fire resulted from an explosion of fire-works carried by somefellow-passengers of the injured man in the compartment in question, and, theplaintiffs case is that it was through the negligence and want of due care onthe part of the servants of the appellant Company, and in violation of theirrules, that the fire-works found their way into the carriage. This is denied bythe appellant Company.

69. There has been much discussion, in the course of theargument, as to the actual quantity of fire-works in the carriage when theexplosion took place, though it is common ground, that any way, a certainquantity of fire-works or bombs did explode in the carriage, and that severalpassengers in the train were severely injured by that explosion. Both thepassengers who were carrying the fire-works were killed, and any directevidence as to the quantity is not forthcoming, though much light would,probably, have been thrown upon this particular point, if that which has beenstyled the "list" of fire-works, or "the order from the Zemindarof Sonepet," and which, with their railway tickets, was found upon thebody of one of the men who were conveying the fire-works, had been produced. Atone time it was in the hands of the guard, Hyrapiet, a servant of the Company,and was by him apparently handed over to the Police; but it has sincedisappeared. This is, at least, very unfortunate. Fitzpatrick, the inspector ofthe Railway Police at Tundla, speaks of the quantity of fire-works as a largequantity, and though that statement must be regarded as a matter of inferencerather than of direct and positive knowledge on his part, upon the whole of thematerials before us his conclusion strikes me as well-founded, and I amsatisfied, that, when the explosion took place, there was a large quantity offire works in the carriage.

70. It is contended for the Company that, if the quantityhad been large, the fire-works must have been observed by the passengers in thecarriage, and reliance is placed upon the two statements of Atindra NathMookerjee, to the effect that he did not see any fire-works. This is a matterof surmise and probability only, and is met by the counter suggestion that,whether the fire-works were carried in a basket or in bundles they wouldprobably be placed under the seat, and a passenger, perhaps at the other end ofthe carriage, might not have observed them. But having regard to the conditionof Atindra Nath Mookerjee when he made these statements, too much reliancecannot safely be placed upon them. The question of the actual quantity offire-works is only material upon that of whether or not they were likely toescape observation, for whether the quantity were large or small, the fireclearly arose from their explosion.

71. It is proved then that Atindra Nath Mookerjee bad paidfor his ticket and was a third-class passenger by the defendants train, thathe was travelling as such passenger in the train, that when so travelling afire resulting from the explosion of a considerable quantity of fire-workscarried in the carnage, in which he was travelling broke out in that carriage,that he was severely injured, and that he died of those injuries; and theplaintiff contends, upon that state of facts, that he has made out a primafacie case of negligence against the appellant Company, and that, having madeout such prima facie case, the onus is cast upon the defendants of showing thatthey had taken every reasonable care and precaution to prevent such dangerousgoods being carried in a passengers compartment of their train, a compartmentin which, admittedly, smoking is permissible. In other words the plaintiffscontention is that the facts proved or admitted by the Company raise apresumption of negligence, which the Company are bound to rebut.

72. We have been referred by the appellants to a very largenumber of cases ranging over a somewhat diversified field of inquiry, many ofwhich appear to me to refer to questions of negligence of a class widelydifferent from that under consideration, and in that view I do not think itwould be very profitable to discuss them. The authorities establish that, inproviding for the safety of their passengers, it is the duty of a RailwayCompany to show, at the very least, such a degree of care, as may reasonably berequired from them, considering all the circumstances of the case. The care hassometimes been spoken of as "a high degree of care," and it has beensaid that the Company must show that the accident was one not preventable byany care or skill.

73. The present case appears to me to range itself underthat class of cases where such a prima facie case has been established as tonecessitate an answer on the part of the defendants, to satisfy the Court thatthey have taken all reasonable care and precaution in the matter. A fire in atrain is not an ordinary circumstance; a fire in a train resulting from anexplosion of a large quantity of fire-works is an extraordinary occurrence, onewhich raises, at least, a presumption of possible negligence on the part of theCompany.

74. Upon this class of case, which I may designate as theres ipsa loquitur class, there are many authorities, and the one very generallyreferred to, by reason of the principle formulated by Chief Justice Erle, isthat of Scott v. London Dock Co. (1865) 3 H. & C, 596. Of these cases thestrongest in favour of the plaintiff is that of Kearney v. London, Brighton andSouth Coast Railway Co. IL.R(1871) 6 Q.B., 759, whilst the appellants rely upon(amongst other cases) Welfare v. London and Brighton Railway Co. (1869) L.R., 4Q.B., 693, and equally upon Daniel v. Metropolitan Railway Co. IL.R(1871) 5 Ap.45, to which I will refer more particularly in a moment. The latest case inthese Courts on this head is that of Choutmull Doogur v. Rivers SteamNavigation Co. I.L.R `(1897) ., 24 Cal., 786 [LQ/CalHC/1897/17] , which has recently been affirmedby the Judicial Committee of the Privy Council (1898) Ante., p. 398.

75. That, however, was a case of damage to goods not ofinjury to a passenger.

76. The appellants, however, contend that this class of casehas no application to the present, inasmuch as the fire-works were not undertheir control, but under the control of one of their passengers.

77. This leads us to consider to what extent the Company hascontrol over luggage carried by their passengers.

78. The men who were taking the fire-works--there is nothingto show whether they were being carried in baskets or in bundles or how theywere being carried--took their tickets and, inferentially, entered the train atAligarh Station, and there is no evidence to show that any care or precautionwhatever was taken at that station to prevent passengers, who might besuspected of carrying dangerous goods, from taking them into a passengercompartment. The Company urge that they have no power to search a passengersluggage, and that if they have to search every parcel carried by everypassenger it would become impracticable to work the passenger traffic of theirline.

79. It is a strange thing to say that a substantial orindeed any quantity of fire-works can be properly described as passengersluggage, but be that as it may, it would be difficult to say that fire-worksare not dangerous goods within the meaning of Section 59 of the Railways Act(IX of 1890), and under that section no passenger is entitled to take suchgoods with him, and any railway servant may refuse to receive such goods forcarriage; and if any railway servant has reason to believe that such goods arecontained in a package, with respect to which no notice of their nature hasbeen given to the station master or other railway servant in charge of theplace, such servant may cause the package to be opened for the purpose ofascertaining its contents. There therefore, under certain conditions, a powerof search in to the officers of the Company. There is not a particle ofevidence adduced by the appellant Company to show that they took any precautionat Aligarh to prevent the men from taking the fire-works into the carriage. Itis not suggested that there was any crowd at Aligarh Station; the train stoppedthere for ten minutes; and from the evidence of the guard the men would have topass through a gate where their tickets were checked. For aught we know thesefire-works may have bean carried in an open basket, and the servant of theCompany--the man at the barrier--may have allowed the men to pass through withthe goods so exposed. If that were so, and there is no evidence to show whetherit was so or not, it is admitted that the Company would be liable. This was theHindu marriage season--a time at which notoriously, fire-works were in demandfor marriage festivities, and a(SIC) me consequently when the Company might notunreasonably be expected to have been specially on the alert. The circumstancesunder which the men were enabled to pass the barrier were facts peculiarlywithin the knowledge of the Company. They might have called the man at the gatewho, if it were the fact, would have been able to say that there was nothing inthe appearance of the baskets or bundles carried by the men calculated to leadhim to suspect that they were carrying such dangerous goods; or they might havecalled others of their servants at Aligarh to show that reasonable precautionsagainst the carriage by passengers in the compartment of such goods were taken.But they call no one to show this. On the contrary, they contend that it is forthe plaintiff to call these witnesses and make out his case of negligence.

80. When a similar argument was advanced in the case ofByrne v. Boadle (1863) 2 H. & C, 722 it was characterised by the late ChiefBaron Pollock as "preposterous." It must be remembered that therailway station at Aligarh, the arrangements at the station, the line, thetrain and the carriages, are each and all under the control of the defendants,and I cannot bring my mind to think that, when the plaintiff had proved what hedid, it was not incumbent on the Company to show that they exercised everyreasonable care and precaution to prevent the fire-works being taken into thecarriage. I am not prepared to accept the contention of the Company that theyhave no control over the luggage carried by their passengers.

81. With respect to the case of Daniel v. MetropolitanRailway Co., there the accident arose under circumstances, and from a cause,quite outside the control of the Company, and it was consequently held that thelatter were not liable. The reasoning of the various judgments in that caseshows that was the real ratio decidendi; but it would be materially extendingthe principle of that case if it were held to apply to the present.

82. It is however not so much upon the decision itself inthat case that the appellants rely, as upon the observations of the late Mr.Justice Willes, when the case was in the Court of Common Pleas (1838) L.R.3 C.P593. That learned and distinguished Judge says: "It is necessary for theplaintiff to establish by evidence circumstances from which it may be fairlyinferred that there is reasonable probability that the accident resulted fromthe want of some precaution which the defendant might and ought to haveresorted to." To my mind the plaintiff in this case has brought himselfwithin this definition; he has established such circumstances as fairly warrantsuch an inference as is referred to. It is a fair inference from thecircumstances that there is reasonable probability that the accident resultedfrom the want of some precaution which might have been taken by the defendantsat Aligarh Station, and which, if taken, might have resulted in preventingthese fire-works being carried by a passenger into a passenger compartment. Thedefendants might have shown, what, if any, precautions were taken, but theyhave not condescended to do so.

83. For these reasons the judgment of the Court below mustbe affirmed and the appeal dismissed, and having regard to the length of timewhich the argument has occupied--I am not suggesting that it was too long--andupon grounds similar to those given by Mr. Justice Okinealy, with costs asbetween attorney and client.

Henry Thoby Princep, J.

84. I am of the same opinion.

T. Ameer Ali, J.

85. Before dealing with the main and substantive question inthis case, I desire to make a passing observation on the appellants contentionthat the plaint does not disclose, with sufficient precision, the character ofthe negligence charged against the defendant Company. On this point it isenough to observe that if the allegation in the plaint was considered by thedefendants as not reasonably explicit, it was open to them to require theplaintiff to supply the defect. No step, however, appears to have been taken,and the parties went to trial on the single issue of fact, viz., whether thedefendants were or were not guilty of negligence so as to make them liable onthe action.

86. Now, it may be regarded as settled law that in the case ofcarriers of passengers under statutory powers, there exists an express duty,independently of any implied contract, to carry them safely. This duty imposeson the carrier the obligation of exercising the utmost care and cautionconsistent with human foresight and diligence. I need only refer to thefollowing cases among others in support of the proposition which I haveenunciated--Collett v. London and North-Western Railway Co. (1851) 16 Q.B.,984; Marshall v. York, Newcastle and Berwick Railway Co. (1857) 11 C.B., 655;Austin v. Great Western Railway Co. (1867) L.R., 2 Q.B., 442.

87. In Foulkes v. Metropolitan District Railway Co. (1880)L.R., 5 C.P.D., 157, to which I shall have presently to refer in detail,Thesiger, L.J., pointed out in the clearest terms that the benefit which acarrying; company derived, directly or indirectly, from the carriage ofpassengers imposed upon it the corresponding obligation of taking due andreasonable care for their safety. A violation of the duty thus imposed on a carryingcompany an omission on their part to take such due and reasonable care toinsure the safety of their passengers whom they invite to travel by theircarriages, is considered as negligence. Proceeding on this principle thelearned Judge in the Court below has held in this case that the defendants hadomitted in fact to take the care which was incumbent on them to prevent theintroduction into the carriage in which the plaintiffs son was travelling ofthe dangerous articles, the explosion of which caused the accident. And it iswith this, finding that we are now concerned. It has been urged on behalf ofthe appellants that the learned Judge in the Court below has wrongly thrown theonus on the defendants whereas it lay upon the plaintiff to prove negligence,that he has imposed an obligation on them not warranted by law, and that inconsidering the question of omission on their part he has overlooked the factthat it is the amount of control possessed by the Company over the act or actscomplained of that determines their liability.

88. These, in substance, represent the principal objectionsurged against the lower Courts judgment. If I understand the matter arightthere is no fixed rule as to onus; each case must depend on its own specialfacts; in some instances the situation of the parties and the nature of theaccident, or the circumstances leading to it, may give rise to a legalpresumption of negligence against the defendants; in others it may be necessaryfor the plaintiff to establish affirmatively actual negligence before theCompany can be made liable.--Byrne v. Boadle (1863) 2 H. & C., 722; Cottonv. Wood (1860) 8. C.B.568; Scott v. London Dock Co. (1865) 3 H. & C, 596;and Kearney v. London and Brighton Railway Co. IL.R(1870) 5 Q.B., 411, furnishexamples of the first class of cases. In Scott v. London Dock Co. (1865) 3 H.& C, 596, the majority of the Judges held that where the thing is shown tobe under the management of the defendant or his servant, and the accident issuch as in the ordinary course of things does not happen, if those who have themanagement use proper care, it affords reasonable evidence, in the absence ofexplanation by the defendant, that the accident arose from want of care. InKearney v. London, Brighton and South Coast Railway Co.i L.R(1870) 5 Q.B 411,the plaintiff was injured by the fall of a brick, while passing under a Railwaybridge extending over the highway. The bridge rested on perpendicular brickwalls, having pilasters, and from the top of one of these pilasters the brickfell, shortly after the passing of a train. It was held that these facts raiseda presumption of negligence against the defendants In this case, Cockburn,C.J., after stating the principle applicable to the case, said as follows:

89. "The Company who have constructed this bridge werebound to construct it in a proper manner (there was no evidence, however, thatit was not so constructed) and to use all reasonable care and diligence inkeeping it in such a state of repair that no damage from its defectivecondition should occur to those who passed under it, the public having a rightto pass under it. Now, we have the fact that a brick falls out of thisstructure and injures the plaintiff. The proximate cause appears to have beenthe looseness of the brick, and the vibration of a train passing over thebridge acting upon the defective condition of the brick. It is clear,therefore, that the structure in reference to this brick was out of repair. Itis clear that it was incumbent on the defendants to use reasonable care anddiligence, and I think the brick being too loose affords prima facie apresumption that they had not used reasonable care and diligence. It is truethat it is possible that, from changes in the temperature, a brick might getinto the condition in which this brickwork appears to have been from causesoperating so speedily as to prevent the possibility of any diligence and careapplied to such a purpose, intervening in due time, so as to prevent anaccident. But inasmuch as our experience of these things is that bricks do notfall out when brickwork is kept in a, proper state of repair, I think, where anaccident of this sort happens, the presumption is that it is not the frost of asingle night or of many nights, that would cause such a change in the state ofthis brickwork as that a brick would fall out in this way, and it must bepresumed that there was not that inspection and that care on the part of thedefendants, which it was their duty to apply." The case was carried to theExchequer Chamber where the judgment of the majority below was unanimouslyaffirmed I L.R(1871) . 6 Q.B., 759.

90. Before I refer to the decisions relied upon by theappellants, I desire to call attention to the facts of the present case. Theplaintiffs son was proceeding to Rawalpindi in the Punjab , by the defendantsline, with a ticket purchased by or for him at Bally. At Aligarh two passengersentered his compartment with some bombs and catherine-wheels. BetweenSecunderabad and Dadri further up the line the fire-works exploded with suchfearful effect that the doors of the compartment were blown out, the carriagewas set on fire, eleven out of the fourteen passengers in the compartment wereso seriously injured that they died within a short time, and considerabledamage was done to the rolling stock of the Company. The facts are abundantlyclear upon the official reports of the Companys servants to their superiorofficers which have been put in evidence on behalf of the plaintiff with theconsent of the defendants Counsel. They would probably be evidence as to theactual facts stated in them under Section 35 of the Evidence Act. It wascontended that as in some of these letters phrases like "surreptitiouslycarried" or "clandestinely carried" occurred, they ought to betaken as evidence against the plaintiff, to disestablish the case ofnegligence. No fact is given which would justify the officer using theexpression in saying that the bombs were carried clandestinely. 80 far as wecan judge it was a mere hypothesis or opinion absolutely of no evidentialvalue. Besides, it is noteworthy that the expression does not occur in theearlier reports or letters, but only in the later ones when presumably theofficer of the company had awakened to a sense of the gravity of the situationand of the liability involved in the dispute. These facts which are more fullyset forth in the lucid and exhaustive judgment of the learned Judge in theCourt below, raise in my mind a strong presumption of gross carelessness on thepart of the Companys servants, and cast upon the defendants the onus ofshowing that there was no neglect of reasonable precautions on their side, andthat the explosives were really carried in a manner that avoided detection.These matters were within the cognizance of the defendants, but no attempt wasmade to discharge that onus. On the contrary it has been strenuously arguedeither that no precaution was possible, or that they do not know whatprecaution could be taken, which comes to the same thing.

91. Ex post facto evidence has no bearing on the questionwhether due or reasonable care was or was not taken, but when a contention ofthe character just referred to is vigorously pressed by a learned Counsel, thefact that subsequent to the accident steps have been taken which have in agreat measure obviated the risk; becomes highly relevant. It is in evidenceupon the reports that a special watch placed by the Company has succeeded instopping in several instances the carriage of fire-works and in the convictionof offenders. In this connection I may observe that the suggestion of Counselthat these fire-works were, in order to avoid detection, carried tied up in abundle, is not only not founded on any data but is also improbable. It appearsfrom the depositions of the witness, that the bombs had bamboos eight to teninches long stuck into them; we know what Catherine-wheels are like. To supposethat these things would be carried tied up in a bundle, which would simplyspoil the things, is absurd. However that may be, it is enough to say that thedefendants have given no evidence as to how they were carried, or that theywere in fact carried so concealed as to escape the notice of the Companysservants.

92. Much stress was laid on Daniel y. Metropolitan RailwayCo. IL.R.(1871) , 5 E. & I.A 45, and Welfare v. London and Brighton RailwayCo.I L.R(1869) ., 4 Q.B., 693, as furnishing the guiding principle in casesrelating to the liability of Railway Companies. In Daniel v. MetropolitanRailway Co. AI.R(1871) E. & I. 45, it appears that the Corporation ofLondon was authorised to execute certain works over the line of theMetropolitan Railway Company. These works consisted partly in placing heavyiron girders upon the walla running along the line of railway and were,therefore, works in the execution of which some danger was involved. TheRailway Company had no control over these works, which were executed bycontractors, engaged by the Corporation. By the negligence of the contractorsone of the girders fell on a passing train and injured the plaintiff. It washeld that it was not the duty of the Railway Company to assume that thecontractors would be negligent or to take precautions against their possiblenegligence, and that the occurrence of the accident did not raise anypresumption of negligence on the part of the Company.

93. In Welfare v. London and Brighton Railway CompanyIL.R.(1869) , 4 Q.B., 693, the plaintiff who was standing under a porticolooking at a time table was injured by the fall of a timber and a roll of zincfrom the roof which was undergoing repair. There was nothing to show that thedefendants knew or had the means of knowing that the roof needed repairing, orthat there was any obligation on their part to take steps to know the conditionof the roof. It was held therefore that the plaintiff had failed to make out acase of negligence against the Company. The facts of these two casesdifferentiate them altogether from the case before us. In Wakelin v. London andSouth-Western Railway Co. IL.R(1886) ., 12 A C., 41, negligence was establishedagainst the Company, but inasmuch as the plaintiff failed to show theconnection between the negligence, and the cause of her husbands death, heraction was dismissed. Lord Watson stated his view in that case in the followingwords: "It appears to me that in all such cases the liability of thedefendant Company must rest upon these facts, in the first place that there wassome negligent act or omission on the part of the Company or their servants, whichmaterially contributed to the injury or death complained of, and in the secondplace, that there was no contributory negligence on the part of the injured ordeceased person. But it does not, in my opinion, necessarily follow that thewhole burden of proof is cast upon the plaintiff. That it lies upon theplaintiff to prove the first of these propositions does not admit of dispute.Mere allegation or proof that the Company were guilty of negligence isaltogether irrelevant; they might be guilty of many negligent acts oromissions, which might possibly have occasioned injury to somebody, but had noconnection whatever with the injury for which redress is sought, and,therefore, the plaintiff must allege and prove, not merely that they werenegligent, but that their negligence caused or materially contributed to theinjury." And Lord Fitzgerald said as follows: "There was evidencealso intended to establish negligence on the part of the defendants in theabsence of due and proper precautions for the safety of the public using thatfootpath. It seems to me that there was evidence of negligence, but it did notgo so far as to establish that such negligence led to the death ofWakelin."

94. In the present case there can be no question that thenegligence of the defendants, assuming that there was any, was the causacausans of the accident. It was urged on the authority of Daniel v.Metropolitan Railway Co.I L, R(1871) 5 E. & I A., 45, that, as thedefendants have no control over the passengers or over what they introduce intothe carriages as their personal luggage, the Company could not be liable fornegligence. I have already pointed out that in Daniel v. Metropolitan RailwayGo. (1871) L.R., 5 E. & I A 45, the Railway Company had no authority overthe contractors. Is it correct to say that the defendants had no control overtheir passengers Does not the whole argument proceed on a pure assumption offact Foulkes v. Metropolitan District Railway Co.IL.R (1880) ., 5 C.P.D., 157,has more analogy to the present case. There the plaintiff, as it appeared inthe Court of Appeal, had taken a return ticket at the railway station atRichmond, which belonged to the South-Western Company, for Hammersmithbelonging to the District Railway Company. The latter had running powers on theSouth-Western Companys line; and the plaintiff on his return journey fromHammersmith to Richmond in a carriage of the defendant Company was injuredwhilst alighting from the train. In the action brought by him it was contendedon behalf of the District Railway Company that the contract with the plaintiffhaving been made by the South-Western Railway that Company were liable and notthe defendants; and, secondly, that as the accident arose from the improperconstruction of the platform at Richmond, which was under the sole control ofthe South-Western, the District Railway Company were not liable. Both thesepoints are thus dealt with by Baggallay, L.J.: "The train by which theplaintiff travelled was in every sense their own; the locomotive and carriagesbelonged to them, the drivers, guards and other servants in charge of it werein their employment, and in their pay, the line over which it ran was in parttheir own, and over the other part they had running powers, and in respect ofthat portion of the line over which they had, and were exercising, runningpowers, they had the same duties and were under the same obligation relativelyto their passengers, and to the public generally, as they had and were under inrespect of the portion of the line which was their own. The plaintiff wasadmittedly properly travelling by their line; he had, in the sense in which theword is ordinarily used, been invited to travel by it." And he went on toadd: "I should not have adverted to this subject [the question relating tothe platform] had it not been suggested in argument that the accident wasoccasioned to the plaintiff, not by reason of any improper construction of thecarriage in which the plaintiff travelled, but by reason of the improperconstruction of the platform, and that the construction and maintenance of theplatform was under the sole control of the South-Western Company; but admittingthe fact to be so, as it possibly is, it was the duty of the defendants eitherto adapt the foot-board or step of their carriage to the platform it would haveto approach or to arrange for an alteration being made in the platform itself.To carry their passengers in carriages which were in any respect or for anypurpose dangerous was, in my opinion, a misfeasance rather than anonfeasance."

95. Now, what was the position of the Company in the presentcase The carriage in which the plaintiffs son was travelling was theirs, itwas entirely in the charge and under the control of their servants; theplatform at Aligarh was under their control, the gate or barrier through whichthe passengers had to pass to get on to the platform was held, it would appearfrom the evidence, by one of their servants; the law had vested them with thefullest powers to make rules against the introduction of combustibles andexplosives into the trains. And if, in spite of these powers and facilities,they omit or fail to take sufficient precautions, as in the absence of anyrebutting evidence we must assume they did, their liability cannot bequestioned. The learned Judge in the Court below has not, in my opinion, cast ahigher obligation than the law imposes, the duty of taking due and reasonablecare for the safety of passengers whom they invite to travel by their line.

96. For these reasons I agree in dismissing the appeal.

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Kally Dass Mookerjeevs. The East Indian Railway Company(17.02.1899 - CALHC)