Misra, J.

(1) This appeal by the plaintiff is directed against the judgment of a learned single Judge of this Court in First Appeal No. 78 of 1952, allowing the appeal from the judgment of the learned Subordinate Judge, Daltonganj. The learned Subordinate Judge passed a decree in favour of the appellant for a sum of Rs. 5578/8/9 together with costs and interest to the date of realisation, but the suit now stands dismissed.

(2) The plaintiff brought the action for damages for recovery of a sum of Rs. 7,000/- from the railway administration on account of damage caused to the plaintiffs motor-truck in an accident. The truck involved in the accident was a three-ton truck BRO 101. It was purchased by him towards the end of 1945. On the 28th of August, 1948, between 1 and 2 p.m., the driver of the plaintiffs truck, Dukhan Singh, with the cleaner, Jagdish Singh, was in the truck driving towards Barwadih station. The road along which the truck was passing ran through a level crossing known as Huter siding railway crossing at 347/6 mile west of Barwadih station. The plaintiffs case was that the road in question was a public thoroughfare. The level crossing was made by the railway administration sometime in 1947 after the commencement of their new construction work. This blocked another level crossing which was two furlongs further to the west. At about the time that the truck was on the railway track, shunting was going on this siding and railway engine No. 1723P, which was being shunted at a fast speed towards Barwadih station together with a brake-van, collided with the truck without giving it any warning. The truck was badly damaged and the driver and the cleaner were killed instantaneously. The hind wheels of the brake-van came upon the truck. The accident happened because the railway level crossing was not provided with a gate or even chain affixed to a pole to the crossing road on either side. No notice-board was also put up nor was any railway servant posted there to warn the pedestrians or the drivers of motor-vehicles etc. of the shunting operation. The other allegation was that the driver of the engine did not have any driving licence and it was moving at a speed of 20-25 miles per hour. A huge quantity of materials such as bulky iron girders for bridges and other materials of construction were heaped on both sides of the road near the level crossing which made it difficult for the driver even to see that any train was being shunted. All this indicated gross negligence on the part of the railway authorities. There was no negligence whatsoever on the part of the truck driver who was proceeding slowly. The plaintiffs motor-truck was repaired, although it was highly damaged, at a cost of Rs. 4,900/-. The plaintiff claimed this amount as well as the amount of loss suffered on account of the truck remaining idle as a consequence of the accident.

(3 ) The Union of India contested the claim of the plaintiff. Several pleas were taken including one of lack of service of valid notice under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure. It was denied that the railway was guilty of any negligence. It was stated that the engine was moving at a speed of not more than 4 or 5 miles an hour and was whistling all the time. The allegation in the plaint that heaps of construction materials including bulky iron girders were lying on either side of the road near the level crossing which affected the visibility of the line was also denied. The accident which was not, however, denied was ascribed to negligence on account of rash and careless driving by the plaintiffs driver as the truck was going at a very high speed. The road was not a public thoroughfare but it was the private road of the railway administration through which the trucks of contractors alone were allowed to pass which carried materials etc., for the construction which was going on there under the railway.

(4) The learned Subordinate Judge found that the road along which the plaintiffs truck passed when the accident took place was a public thoroughfare in the sense that it included part of the old route which was open to the public. The railway administration did not object to any vehicles passing along this road; and although it was constructed by the railway administration, it was for all practical purposes a public thoroughfare. He held further that the defence case that the engine was moving at a slow speed was not acceptable. The fact that the truck was damaged in the hind part and was actually thrown away 30 ft. on the north side of the railway engine when, admittedly, it was going from south to north would also indicate that the truck had already passed the railway track when it was struck in the back portion by the brake-van which was being pushed back towards Barwadih railway station by the engine. The learned Subordinate Judge also accepted the plaintiffs case with regard to the amount required for the repair of the truck. He reduced, however, the claim based on loss incurred by the plaintiff on account of the truck remaining idle for seven months. The claim for Rs. 2,100/- was reduced to Rs. 1,050/-. A decree was thus passed for a sum of Rupees 5,577/8/9 together with proportionate costs and interest at the rate of sis per cent. per annum.

(5) On appeal to this Court, the learned Single Judge set aside the decree of the Court below. The learned Judge did not accept the defence plea that the road leading to the railway crossing was not a public road. He also accepted the case in the plaint that visibility at the railway crossing was poor on account of the situation and the height of the bunker of the Hutar coal field and that huge quantities of the construction materials had been stacked on either side of the line, so that it was not possible cither for the engine driver or the porter and the truck driver to see each other. He also accepted the plaintiffs case that there was no chain or gate south of the place of occurrence nor was any person posted at the railway crossing to warn the public and that the engine did not whistle at the time of the accident. The only two points raised before the learned single Judge, however, on behalf of the Union of India, were that the road through which the truck passed was a private road of the railway administration and not a public thoroughfare and, in the second place that the learned Subordinate Judge had not given weight to the circumstances which would establish that the negligence of the truck driver contributed to the accident. On the first question, as I have already mentioned, the learned single Judge agreed with the finding of the learned Subordinate Judge in so far as he held that the railway administration could not take the plea of the existence of a private road as a defence in the action inasmuch as it habitually acquiesced in passengers using the level crossing. It was true, no doubt, that the road had not been declared to be a public thoroughfare at the time of the accident, but the public in general were freely using it and the motor vehicles passed by the level crossing without any objection on the part of the railway administration. In the result, therefore, whether the road was a private road or a public thoroughfare would not make any difference, because the defendant would be liable for the accident occurring on the railway crossing due to a negligent act on the part of its servants. On the second question, however, viz., contributory negligence on the part of the driver of the truck, the learned Judge came to a different conclusion that actually the accident took place on account of contributory negligence on the part of the truck driver. According to the learned Judge, when the accident happened, it was broad daylight and if there were materials stacked on either side of the road, it was all the more necessary for the driver of the truck to have been vigilant and cautious. The plaintiffs house was situated near the railway crossing as the evidence indicated and the driver was well acquainted with the condition of the road there and, even if the shunting train did not whistle when it was passing through the railway crossing, the driver should have pulled up the truck as he saw the railway engine with the brake-van running from west to cast. The learned Judge relied for his view on the decision in Walker v. The Midland Rly. Co., (1866) 14 LT 796. The learned Judge all the same recommend ed ex gratia payment of Rs. 2500/- to the plaintiff as was done in the case of Governor-General of India in Council v. Bibi Saliman, AIR 1949 Pat 388 [LQ/PatHC/1948/22] .

(6) Mr. G. C. Mukherjee has urged that the only question for consideration in this appeal, therefore, now is whether the authorities relied upon by the learned single Judge support his conclusion. Mr. P. K. Bose appearing for the respondent has urged that the matter should be gone into afresh as to whether the road in question was a public thoroughfare. In my opinion, however, in view of the evidence on record, it is difficult to go against the concurrent finding of the two Courts on this matter. In any case, even if the road were a private road but the public in general were allowed to pass even as licencees, that should hardly make any difference. It is, therefore, unnecessary to scrutinise the evidence more minutely as to what was the character of the road, although I am inclined to accept the finding of the learned Subordinate Judge that it was intended to be public road and it was actually thrown open to the public three months after the accident. It is also clear that part of this road included the space which was occupied by the public road before the construction of this road. Even assuming that it was not thrown open to the public formally, it was for all practical purposes a public thoroughfare.

( 7. ) Mr. G. C. Mukherjee has urged further that the learned single Judge was right in his conclusion that whether it was technically public thoroughfare or not, but in view of the freedom allowed to the vehicular traffic to move freely on this road, it must be regarded as a public road for all practical purposes. In his support, he has relied upon the observations in some English cases which I have discussed later on. He has, however, argued that the view of the learned Single Judge is not correct with regard to the amount of care required of the driver of a motor vehicle while passing on a railway level crossing. A preliminary duty was cast upon the railway administration to put up a gate or a chain or to post any one there to give warning to the passengers or vehicular traffic that shunting was going on and that the vehicles were not allowed to pass at that time. The case of (1866) 14 LT 796 was the case of a pedestrian who got clown from the train at the Holbeck station and walked along the way with which she was well acquainted. But she took the foot-path from the railway yard by the side of the railway track and proceeded to cross the single line by the appointed level, crossing to leave the station. As soon as the passenger went on to the line, a train happened to pass -that way and she was knocked down and killed. It was held in the circumstances that there was no negligence on the part of the railway administration and the accident happened entirely due to the act of the passenger herself. It was urged that the above case was not even a case of contributory negligence inasmuch as the defendant company was completely absolved from any liability. It was not a case of level crossing where the gate could have been closed, because the passenger was passing inside the railway yard and when she was stepping on the line it was her elementary prudence to look both ways before she did so. It was obviously in a mood of absent-mindedness that she went on the line and was knocked down. In my opinion, this contention is correct and the aforesaid decision cannot be regarded as an authority which can apply to the facts of the present case. Mr. Mukherjee has drawn our attention in this connection to a class of cases relating to the duty cast on the railway administration so far as level crossing is concerned: Bengal Provincial Rly. Co. v. Gopi Mohan Singh, ILR 41 Cal 308 [LQ/CalHC/1913/399] : (AIR 1914 Cal 368 [LQ/CalHC/1913/399] ). That was a case where the plaintiffs carriage was damaged by the train of the defendant company running into it at a level crossing where the gate had been left open. The mere fact that at level crossing the gate was left open was held to be an invitation on the part of the railway company to all comers to cross the line and the intimation that it could be crossed with safety. The present case, therefore, is one where the principle applicable to the case of a pedestrian passing is not applicable. A pedestrian may now and then go across even a railway gate at a railway crossing which is closed. But, obviously, a motor vehicle, or for the matter of that, any vehicle cannot pass through a railway level crossing when the gate of the crossing is closed. It is true, no doubt, that in the present instance no gate had been put up as the siding was still under construction, but, in my opinion, when there is a level crossing at which vehicular traffic is passing, and it is near a busy railway station, it is the duty of the railway administration either to fix there a gate or a chain or at least to post a man to warn the drivers of the vehicles of an approaching train. This has been laid down in the following cases as well: Daya Shankar v. B. B. and C. I. Rly. Co., AIR 1931 All 740; B. N. W. Rly. Go. Ltd v. Matukdhari Singh, AIR 1937 Pat 599 [LQ/PatHC/1937/121] , Swarnalata Barua v. Union of India, AIR 1963 Assam 317; British Columbia Electric Rly. Co. Ltd v. Loach, 1916 AC 719: (AIR 1916 PC 208); Cliff v. Midland Rly. Co. (1870) 5 QB 258; J. Pokora v. Waliash Rly. Co. (1933) 292 US 98. The above cases, no doubt, refer to the position, now settled in law, that where there is a level crossing on railway track through which a thoroughfare passes, the gates should be closed before the passing of a train through the crossing. Failure to close the gates on the part of the gate-man resulting in an accident to a vehicle passing along the crossing, causing damages to the vehicle while passing, will fasten liability for the damage on the defendant railway company or the railway administration, as the case may be. It is accordingly not necessary to refer to this part of the dictum in these cases. Mr. P. K. Boses argument, however, for the respondent, as I have mentioned above, seems to draw a line of distinction between a case wherein gates are fixed by the railway authorities and the present case in which no gates had actually been put up, so that this level crossing could not be regarded as a case of invitation by the railway authorities to the passing vehicle to go across the track if the gates could not be found closed. His contention is that since no gates were fixed because the road was not yet thrown open to the public, a correspondingly greater degree of care was required of the driver of the truck before he could run across the railway line. The answer to this, however, is to be found in the judgment of the Assam High Court in Swarnalata Baruas case referred to above, AIR 1963 Assam 117 where it has been laid down that where a railway line crosses a busy road at such a point that the incoming train is not visible due to house and bridge until the passer is on the railway track, there is no question of contributory negligence inasmuch as the first duty in such a case is cast on the railway authorities to arrange for the safety of the passers. In such a case, it would be the obvious duty of the railway administration to take adequate steps to warn the public of the approaching trains, In the present case, therefore, if no gates were put up because the thoroughfare was not yet thrown open to the public, all the same, if vehicular traffic was freely allowed to pass across the level crossing, some arrangement should have been made for the safety of the persons or vehicles to warn the public of the approaching train. There should have been at least some one posted at the level crossing who would either block the passage of the vehicles by means of an iron chain which might be fixed there to indicate that the trains were passing on the track or some other kind of signal might be put up so that drivers of the vehicles might be alerted and forewarned not to risk a passing of the track so long as the signal warning off vehicles would be kept up. That too was a case where there was no gate at the railway crossing and there was no whistling of the train which came up and hit the lorry. In the present case also the finding is that high heaps of construction materials for the road, as I have already stated, were stacked on both flanks of the road on the railway line, so that anybody coming from the south to the north would not be able to have a clear view of the level crossing. The principle laid down in the above case is correct and in consonance with the principle of the defendant railway companys liability on account of negligence if, at a level crossing which lies in a fairly busy locality, no arrangement is made to warn the passers-by of approaching trains, In the American case also the principle has been put beyond doubt that the giving of the statutory signals does not exhaust the duty of a rail road company at a highway crossing when to its knowledge there is special danger to the traveller through obstructions on the roadbed narrowing the field of vision. It has further been laid down that one whose view of a railroad track before entering upon a crossing is obstructed cannot be said as a matter of law to have been guilty of contributory negligence in not getting out of his vehicle to reconnoitre before driving upon the crossing. On the finding in this case of the presence of obstruction on the road, the principle of the above American case fully applies as that of the Assam case. The principle that the doctrine of contributory negligence, upon which the learned single Judge relied, will not apply to this case is also supported by the above mentioned case of British Columbia Electric Rly. Co. Ltd. 1916 AC 719: (AIR 1916 PC 208). The following observation in the judgment of Lord Sumner is apt on the point:

"The whole law of negligence in accident cases is now very well settled, and, beyond the difficulty of explaining it to a jury in terms of the decided cases, its application is plain enough. Many persons are apt to think that, in a case of contributory negligence like the present, the injured man deserved to be hurt, but the question is not one of desert or the lack of it, but of the cause legally responsible for the injury. However, when once the steps are followed the jury can see what they have to do, for the good sense of the rules is apparent. The inquiry is a judicial inquiry. It does not always follow the historical method and begin at the beginning. Very often it is more convenient to begin at the end, that is at the accident, and work back along the line of events which led up to it. The object of the inquiry is to fix upon some wrong-doer the responsibility for the wrongful act which has caused the damage. It is in search not merely of a casual agency but of the responsible agent. When that has been done, it is not necessary to pursue the matter into its origins; for judicial purposes they are remote. Till that has been done there may be a considerable sequence of physical events, and even of acts of responsible human beings, between the damage done and the conduct which is tortious and is its cause. It is surprising how many epithets eminent judges have applied to the cause, which has to be ascertained for this judicial purpose of determining liability, and how many more to other acts and incidents, which for this purpose are not the cause at all Efficient or effective Cause, real cause, proximate cause, direct cause, decisive cause, immediate cause, causa causans, on the one hand, as against, on the other, "causa sine qua non, occasional cause, remote cause, contributory cause, inducing cause, condition, and so on. No doubt in the particular cases in which they occur they were thought to be useful or they would not have been used, but the repetition of terms without examination in other cases has often led to confusion, and it might be better, after pointing out that the inquiry is an investigation into responsibility, to be content with speaking of the cause of the injury simply and without qualification."

That was a case of the deceased going in a cart and driving on a level crossing. He did not hear or see, the approaching car until it almost knocked down the cart Benjamin Sands, one of the occupants, was killed. In the circumstances, it was held that it was not a case of contributory negligence This entitled the plaintiff to his claim for damages because in that case the defendant company, although not committing a negligent act subsequently to the plaintiffs negligence, had incapacitated him by its previous negligence from exercising such care as would have avoided the result of the plaintiffs negligence. It was not a case of no gate having been put up at the level crossing, but a case of deciding what was meant by proximate cause of the accident It would depend upon a consideration of the facts of the case and the conduct of the parties. In a case of level crossing, therefore, the antecedent conduct of the railway man in not closing the gate or not fixing up a gate where one should be put up, or not making any proper arrangement where a busy thoroughfare passes to cross the railway track, by way of signals or otherwise would make the railway administration liable. In (1870) 5 QB 258 the principle of the duty of the railway company in regard to railway crossings has been laid down in clear terms and this class of cases has been put in a distinct category of "negligence as to the crossing. In that case when the defendants line was originally opened gates were erected across the occupation road, and there was a gate-keeper kept, but the defendant had ceased to keep a gate-keeper some years before the accident, and the gates were left unfastened. Lush, J. at page 264 of the report said:

"I think that where the legislature authorizes a railway to cross a way, public or private, upon a level, and does not require from the company any precaution to avoid danger, the legislature intends that the persons who have to cross that line should take the risk incident to that state of things. But, it may be, and I am inclined to think that it is, sound principle that if the railway company, to the construction of the works so authorised,--in the exercise of the discretion which the legislature has vested in them,--do anything which prevents persons passing over the line from taking care at themselves, and exposes them to greater peril than is ordinarily incident to a level crossing, the company thereby impose upon themselves an obligation to take other than the usual precautions for the protection of persons who have a right to pass there, and, as it were, to make up to the public for that which they have taken away from them. Mr. P.K. Bose drew our attention in this connection to a decision of this Court reported in AIR 1949 Pat 388 [LQ/PatHC/1948/22] ; (1883) 12 QB 70 Davey v. London and South Western Rly. Co., .Quinquennial Digest, 1951-55 (Vol III), MLJ Office Publication, at pages 25-16-17, for the proposition that where one party (A) actually knows of the dangerous situation created by the negligence of the other (B) and fails by the exercise of reasonable care thereafter to avoid the danger, A is generally speaking, solely liable, but that if by reason of his own negligence did not actually know of the danger or by his own negligence or deliberate act has disabled himself from becoming aware of the danger he can only be held liable for the proportion of the resulting damage. Reference is also made to the case of Marvin Sigundson v. British Columbia Electric Rly. Co., Ltd.. P. C. Appeal No. 3 of 1952 dated 21-7-1952. That, however, obviously, is not a case of level crossing and in the absence of the report no strength can be derived from it for the argument on behalf of the respondent. In Daveys case, (1883) 12 QB 70 however, the defendants railway crossed a public footway on the level. The plaintiff in that case was a foot-passenger who while crossing the track from the down side to the up side of the railway was knocked down and injured by a tram. There were certain buildings standing by the side of the line which made it impossible for any one crossing from the down side to see a train coming, but a person standing on the down line had a clear and uninterrupted view up and down the line for several hundred yards. The plaintiff lived near and was well acquainted with the crossing. The engine driver in that case did not whistle. There was a servant of fee defendant company who was employed as a gate-keeper at the crossing and was required to open the gates when carriages could be safely admitted. At the moment of the accident, he was standing on the opposite side of the crossing talking to two boys, with a furled flag in his hand. He gave no signal to the plaintiff that a train was coming. In those circumstances, Brett, M.R. and Bowen, L. J. held that the non-suit was right as, although there was evidence of negligence on the part of the defendants, the plaintiff had shown that the accident was solely caused by his omission to use the care which any reasonable man would have used. That judgment was, however, given on the peculiar facts of that case which were taken into consideration by the learned Judges. It was also a case of foot-passenger and Brett, M. R., held: "There was no evidence that this railway man was put there for me purpose of signalling to or of warning foot-passengers, or that he ever did so. He was put there to warn carriages and earth, and to shut and open the gates, so as to prevent their crossing the railway when they ought not, and to enable diem to so cross when they might; in other words, to perform the statutable duty of the railway company. The plaintiff, therefore, I think had no right to say he had been misled by that railway man not having made any signal to him. On the contrary, it seems to me that the plaintiff shewed by his own uncontradicted evidence that he himself had been guilty of negligence which contributed to the accident" Bowen, L. J., at page 76, also observed: "There is no statute law as regards the obligations of a railway company with respect to a level foot-crossing, so far as I know, and the learned counsel for the appellant admitted as such. It seems to me that whether a railway company has or has not taken the proper precautions with regard to the speed at which and the warning accompanied by which their trains pass on a level crossing, must be in each case a question of fact. A level crossing in a prairie, where you can see twenty or thirty miles each side, is very different from a level crossing outside the mouth of a tunnel, or a level crossing in a street, and you must took at each case, and all the facts of the case, before you make up your mind what the railway company ought to do."

In the present case, I have already stated that it was a busy level crossing near the Barwadih function and that it was the shunting area where trains would pass now and then without any one even knowing whether it was time for a train to pass. In the circumstances, it was all the more necessary that the railway administration should have made some arrangement for the signalling to vehicles passing that way that the track was not safe as shunting was going on at a particular moment.

(8) Mr. P. K. Bose for the respondent has urged further that since this particular road was not thrown open to the public formally until a few months after the date of accident, the plaintiffs truck could not legitimately pass that way as a matter of right, although the railway authorities did not object to such passing and, in fact, it was being used so far, mainly, for the trucks etc., of the railway contractors passing that way. It is not necessary for me to deal with this argument at length inasmuch as the point was conceded before the learned single Judge that the thoroughfare was being used by the public in general; and although it was not formally open for public traffic, it was being used as such from before the date of the accident. The learned single Judge has proceeded upon that footing and not on the ground that the plaintiffs driver was a trespasser in taking his truck through this road. Mr. G. C. Mukherji has further drawn our attention to some recent English decisions on this point. The case of Slater v. Cley Cross Co., Ltd. (1956) 2, All ER 625 was one where a narrow gauge railway owned by the defendants used to pass through a tunnel 66 yards in length. The residents of the locality had become accustomed to using the railway track as a pathway by way of a short-cut to the village and the practice had been acquiesced in by the defendants. The plaintiff, while walking through the tunnel, was struck by a train and she claimed damages. The Court found that the plaintiff was a licensee on the track and that the driver employed by the defendants was negligent, but that the plaintiff was guilty of contributory negligence. The Court of appeal held that the defendants, whether they were invitors or licensors, were under a duty, in carrying out their operations, to take reasonable care not to injure anybody lawfully walking on the railway and the defence of volenti non fit injuria was not available. The learned Judges followed the decisions in Hawkins v. Coulsdon and Purley Urban District Council, (1954) 1 All ER 97 and Dunster v. Abbott, (1953) 2 All ER 1572. They also approved of the decision in Dann v. Hamilton (1939) 1 All ER 50. Lord Denning observed as follows on this point:

"Counsel for the defendants stressed the fact that the plaintiff was only a licensee and urged that this was of special significance. I do not think so. The Law Reform Committee has recently recommended that the distinction between invitee and licensee should be abolished, but this result has already been virtually attained by the decisions of the courts. The classic distinction was that the inviter was liable for unusual dangers of which he knew or ought to know, whereas the licenser was only liable for concealed dangers of which he actually knew. This distinction has now been reduced to vanishing point."

(9) In the result, therefore, it must be held that the learned single Judge did not come to the right decision in allowing the appeal from the judgment of the learned Subordinate Judge. This Letters Patent Appeal is, therefore, allowed, the judgment of the learned single Judge is set aside and that of the learned Subordinate Judge is restored. The appellant is entitled to his costs throughout.