(RATNAVEL PANDIAN, J.)

1. The unsuccessful plaintiff in O.S. 4908 of 1968 on the file of the City Civil Court, Madras, is the appellant herein. The appellant filed a suit for the recovery of a sum of Rs. 25,720.34 as damages in respect of an accident that occurred on 16th August, 1962 at about 7 pm The relevant facts that led to the action can be stated thus: The plaintiff is the real owner of a Babi taxi, Standard-X, bearing Registration No. M.D.C. 9261 of the model of 1956. But, the registration certificate stands in the name of his son V.K. Bhaktavatsalam, on 16th August, 1962, the defendant Railways train, viz., the Tirunelveli Express left Madras Egmore Railway Station at about 6-45 pm while proceeding to Tirunelveli, dashed against the said Baby taxi at the level crossing between Kodambakkam and Mambalam Railway Stations. The said level-crossing was situated immediately north of Mambalam Railway Station and it is referred to as Doraiswamy Iyer level-crossirg, It is so called by this name since Doraiswamy Iyer Street, in T. Nagar is just east of the said level-crossing. The area to the West of this crossing is called Old Mambalam. It is the case of the plaintiff that the driver of the taxi viz., P.W. 3 drove she vehicle across the level-crossing as the gate were open. While the rear portion of the taxi had not crossed the steamline, the Tirunelveli Express, without any warning, came from Egmore side and dashed against the taxi. As a result of this impact, the two passengers and the driver were injured and the taxi was severely damaged. According to the plaintiff, the accident was entirely due to the gross negligence of the defendant Railway Administration and their Staff, for the reasons that there was no automatic signal system and no interlocking arrangement for closing the gates sufficiently early before the train was at sight. The Railway gate was wide open and there was no signal or any other alarm at or near the gate to put the driver on guard. It is thus alleged that there was an open invitation as it were for the plaintiffs car to pass through the level-crossing. The plaintiff has valued the damage to the vehicle at Rs. 7,720-34 and a sum of Rs. 18,000/, is claimed as the loss of Income at the rate of Rs. 30/- per day from 17th August, 1962 to 10th April, 1964. The said taxi was held up in the office of the Police Commissioner in connection with an inquiry of this accident and the plaintiff took delivery of the same only on 2nd September, 1962, since the plaintiff had been awaiting inspection by the officials of the defendant.

2. The defendant railway resisted the claim contending as follows: The plaintiff is not the registered owner of the vehicle. There is no question of negligence on the part of the defendant as alleged. The taxi-driver (P.W. 3), in spite of necessary warnings, entered the level-crossing, in spite of the road danger signal exhibited at the gate and ignoring the continuous sounding of the gong and the shouting of the gateman who was trying to close the gate, warning of the approaching train. The level-crossing is a manned level-crossing and on the approaching of a train from either direction, the warning lights are lit and the gongs sound warning the road-traffic about the impending close of the gates. In this case, P.W. 3 entered the level crossing in spite of the warning. It is futile for the plaintiff to contend that there was an open invitation as it were for the taxi to pass through. Thus, it is submitted by the defendant that since the accident was caused solely because of the rashness and negligence on the part of the driver of the taxi, the defendant is not responsible for the accident or for any alleged damage, which the plaintiff claims to have suffered thereby. The plaintiffs claim of Rs. 7,720-34 towards the repair of the vehicle is also not admitted. Further, the plaintiff is not entitled to claim any damages towards loss of income and the suit is also barred by limitation.

3. On the above pleadings, the following issues were set for trial:

1. Is the suit not maintainable for the reasons stated in paragraph-3 of the written statement

2. Did the defendant observe all that was required of them to warn the traffic passing across the line at the time of the accident

3. Was the plaintiffs driver rash and negligent in entering the level-crossing at claimed in paragraph-9 of the written statement

4. If issue-2 is found in the negative, what is the amount of damages due to the plaintiff

5. Is the Union of India, in any, event liable for the tortious acts of its servants

6. Is the suit barred by limitation

7. To what relief is the plaintiff entitled

4. The plaintiff examined four witnesses including himself and marked Exs. A-1 to A-10. The defendant relied on the evidence of D.Ws. 1 to 2 and marked Exs. B-1 to B-28. The learned Principal Judge of City Civil Court, after elaborately discussing the evidence has found on issue-1 that the suit is maintainable and on the main issues 2 and 3 that the accident was not as a result of any negligence on the part of the Railway Servants, but was entirely due to the rashness on the part of the Taxi driver (P.W.-3). On issue-4 the learned trial Judge estimated the damages suffered by the plaintiff at Rs. 5,800/- (Rs. 4,000/- for the damage to the vehicle and Rs. 1,800/- towards the loss of income). Since issues 5 and 6 were not pressed by the defendent, no finding was given on those issues. Ultimately the trial court dismissed the suit without costs. It is as against this dismissal of the suit, this appeal has been filed.

5. Before going to a discussion of the relevant questions of law and the disputed facts of the case, the following undisputed facts may be summarised for a proper understanding and appraisal of the evidence. The occurrence took place on 16th August 1962 at about 7 pm at a level-crossing known as Doraiswamy Iyer Street Level crossing (hereinafter referred to as the level crossing) which ran acress the respondents railway track at a point between Kodambakkam and Mambalam Railway Stations. The particular level-crossing runs east to west, south to Kodambakkam and North to Mambalam, and on either side of the crossing there were gates-made up of two leaves as on the date of occurrence, opening outwards, away from the track. The gate on the east gave access to Doraiswamy Iyer Street in T. Nagar as said earlier, and on the west of it lay West Mambalam, otherwise known as Old Mambalam. There were gongs and road-light signals facing outwards from the point of crossing on either side. The gates were provided with padlocks and it is the duty of the gonger responsible for that section of the Railway line to ensure that the gates are kept closed and secured except when actually in use. It is the public crossing over the line for carriage and foot-passengers. There are three railway lines running over the level-crossing as indicated in Ex. B-5, viz., the main line on the eastern-most side, the down-line in the centre end the up-line on the western-most side, out of which the two lines on the western side viz., the up and down lines are used for the up and down electric trains and the easternmost main line is used for the steam engine trains. On the evening in question, an electric train bearing No. 139 broke down at Nungambakkam Railway Station; rendering one of the tracks of the electric trains not commissioned. So, all the electric trains bound for the up and down journeys bad to use only oneline, which, as a result, necessitated the closing of the gates at the level crossing for a considerable length of time running from 6-00 pm to 6-45 pm Only at 6-45 pm, the ringing of the warning gong stopped and road-light signal went off, indicating that the gates at the level crossing would be opened for traffic. Accordingly, D.W. 2 and other gateman viz., Govindan (not examined since retired) opened the gates. As pointed out, since the gates were closed for 45 minutes, a large number of vehicles had collected on either side of the level crossing. As soon as the gates were opened, a trail of vehicles rushed through the crossing. It is the defendants case that within a few minutes of the opening of the gate, the warning gong began to ring again and the red lights were glown indicating that some train was approaching and that the gates should be closed. But, the plaintiff disputes this fact and contends that he did not hear any caution of the bells ringing or see any red-light at the gate warning not to proceed. About this controversy, we shall discuss later.

6. The taxi concerned in the case had been stationed about 250 east of the level crossing on the T. Nagar side. Two young boys (the passengers in the taxi, who were injured but not examined) had engaged the taxi for being taken to old Mambalam from where some passengers had to be taken to the Madras Central Station. P.W. 3 was the taxi driver. After taking the two boys in the taxi, P.W. 3, the taxi driver, proceeded towards Old Mambalam and on seeing the gate at the level crossing closed, joined the queue of Vehicles already waiting on the eastern side to cross the level-crossing to go to Old Mambalam on the west. After the gate were opened, P.W. 3 followed the vehicles ahead of him and entered the level crossing at which point of time the Tirunelveli Express came on the steam-line and struck the rear portion of the taxi, as a result of which the taxi, with the driver (P.W. 3) and the two young boys, was flung out on the side of the main line, i.e., between the main line and the down line as shown in Ex. B-5. The train moved further and stopped. By the time the engine driver (D.W. 3) could come up to the place of accident after bringing the train to a halt, the injured viz., P.W. 3 and the two boys had been taken away from the place to the hospital.

7. Now, we shall refer to the other piece of evidence adduced by both sides in the case.

(The discussion of facts is omitted.Ed.)

8. The main contention of the learned counsel appearing for the appellant is that as the gateman failed to close the gates and as the gates remained open, it was only an invitation as it were to the taxi driver (P.W. 3) to cross the line and that was why the suit taxi, following the other vehicles, entered into the I railway track, which resulted in the accident, and therefore the accident was due to the gross negligence of the defendant Administration and its staff. A faint argument was also further advanced, on the strength of the pleadings in the plaint, that at or about the time of the accident there was no signal or any other alarm at or near the gate to put the appellant-plaintiff on guard. Further, he would emphatically urge that even assuming that there were the red signal and the ringing of the gong, they were warnings only to alert the gatemen to close the gates and would not amount to warning to the Public not to cross the level crossing, and therefore, until the gates are closed, thereby preventing the traffic from entering into the track, one has got a right to entry. In other words, it is contended that keeping the gates open by itself is an invitation to the passengers to past through and the liability of the Railway Administration for any accident that may occur subsists till the gates are closed.

9. Coming to the question as to whether the gongs were ringing and the red lights were lit, P.W. 3 is not assertive that the gongs did not ring or that the red lights did not glow. But, he would simply say that he did not hear any caution bell ringing or see any red light at the gates warning not to proceed. In the Chief-examination itself, as we have already mentioned in the course of the narration of the evidence, Ex. B-11, the signed statement given by P.W. 3 to the Sub-Inspector of Police, Egmore, on 21st August, 1962, is marked. There is no evidence whether there was any criminal case registered in connection with this accident and whether this statement has been recorded during the course of the investigation. Any way, without going into the question as to its admissibility in evidence, we feel that though the appellant has relied on it to support his case, in fact the major portion of the statement goes against him. We shall discuss about this statement later in detail while dealing with the first question. At this particular juncture, we may mention that this document relied upon by the appellant to show that even in Ex. P. 11, he has stated that he did not hear any bell-sound and did not see any red-light. As against the evidence of P.W. 3 it has been brought out in the cross-examination of D.W. 1 that there was no failure of electricity on the date of the accident. D.W-2 is very emphatic in his evidence that within a few minutes after the gates were opened at 6-43 pm the bells began ringing and the red-lights were glowing, thereby indicating that the train was approaching. In spite of the warnings, the suit vehicle entered into the track. There is absolutely no cross-examination nor any suggestion that the bells did not ring and the red lights did not glow. Ex. B-7 the relevant sheets from the Level Crossing Register relating to the suit level-crossing, and Ex. B-8. the special report of the Permanent Way Inspector regarding the working of the level crossing, show that the two warnings are working electrically and that they warn the users of the road about the approaching of the train. In the absence of any tangible evidence controverting this aspect, we hold that the gongs were ringing and the red lights at the gates were glowing at the time of the accident. It admitted that electric red-lights ere fixed on either side of the level crossing. It is also pertinent to note that the lights are facing the roads on either side. That itself is an indication that when the red-lights are on, the people are warned not to cross the level crossing. In addition to these red lights, the gongs also sound. By no stretch of imagination can be said that this sounding of the gongs, which lasts for some time at the time of the closing of the gates, is intended merely to the gate-men. It is well-known that all foot-passengers and other traffic intending to cross the level crossing get alerted by the red lights and the sounding of the gongs. It is absurd to say that P.W. 3 the taxi driver, could ignore the red lights and the ringing of the gongs, saying that they are only an indication to the gatemen to close the gates and not to alert the public. In this connection, another point may also be noted. The questions is: what is the warning to the passengers intending to cross the level crossing The act of the gatemen closing the gates is a step taken by them after the warning already given to the passengers on the rood. When the gates are being closed, it cannot be said that is a warning, because by such an act the road-users are actually prevented from crossing. Thus, the position is that at level crossing where the red-lights and the sounding of gongs are provided, they constitute the actual warnings to the public not to cross because of the approaching of the train. Then the gatemen close the gates in order to physically prevent the road-users from entering into the track Thus, the closing of the gates is an additional precaution, an additional preventive step, provided by the Railway Administration against the road-users who in spite of the red-lights and the sounding of the gongs, may choose to enter the railway track. In this connection, still another point can be noted. It is the primary rudimentary principle that red-light signals on the highways are given as a danger signal not to proceed further. These signals are intended and also understood by the public at large as a warning not to proceed further. Likewise, at railway level crossings also these lights and gongs are provided to warn and alert the public sufficiently in advance not to proceed further. The closing of the gates is an additional step taken by the Railway as provided in S. 13 of the Railways Act and Rules 227 to 233 (under Chapter VIII) coming under Part I (Rules for the Guidance of Railway Servants) of the General Rules framed under S. 47 of the Railway Act, which came into force from the 15th May, 1930. S. 124 of the Indian Railways Act is a penal section providing for the punishment of persons who, knowing or having reason to believe that an engine or train is approaching along the railway, open any gate set up on either side of the railway across a road or pass or attempt to pass or drive or lake or attempt to drive or take any animal, vehicle or other thing across the railway. Thus, even if a person knows or has reason to believe that an engine or train is approaching along the railway , he is prevented from crossing or attempting to cross the railway line. Therefore, mere knowledge or a reasonable belief about the approaching of any train or engine is a sufficient warning to the public not to cross the level-crossing No other warning is actually necessary. But, in this case, we have got ample evidence to show that red lights and gongs were fixed at the gates of the level crossing as shown in the plan Ex. B-5. We also find from the judgment of the lower court that the learned counsel for the plaintiff did not contend that the aforesaid warnings were not there. On the other hand, there is evidence to show that in spite of the red-lights (danger) signal, sounding of the gongs, the attempt of the gatemen to close the gate and his actually closing one of the leaves as refereed to above and the admitted shouting by the gateman that the train was coming, the taxi-driver P.W. 3 had chosen to cross the level crossing. The above said warnings had no effect on him. We, therefore, hold that in this case the sounding of the gongs and the glowing of the danger signals at the gates facing the roads on either side are by themselves sufficient warnings to the road traffic not to cross the level-crossing and the closure of the gates was only an additional precaution physically preventing any trespass by the road-users into the railway track. As regards level-crossings where there are no such red-light or gongs or any other additional warnings provided, Rule 229 of the General Rules of the Railways framed under S. 47 of the Act and the other rules and instructions issued under the Act should be referred. So far as this case is concerned, the argument advanced by the learned counsel, for the appellant on this aspect is not acceptable.

xxx

[The discussion of facts is omittedEd.]

10. The prudent driver should have known that the gateman was trying to close the gate only to prevent him from entering into the track since the train was coming. But, in spite of these warnings, he has merely taken a risk in his anxiety to take the passengers to the Central Station. So, we hold that in utter disregard of the warnings, the driver P.W. 3 had entered into the level crossing.

11. The next question, in our opinion, which arises for determination is about the capacity in which P.W.-3 drove his taxi over the level crossing on the occasion of the accident. There are three categories in which persons visiting premises belonging to another may fall. They are (1) by the invitation, express or implied, of the occupier, (2) with the leave and licence of the occupier, and (3) as trespassers.

12. The meaning of the word invitee is given in the Shorter Oxford English Dictionary, III Edition, Volume 1, thus One who is invited.

13. The meaning of the word invite is stated thus:

To ask (a person) graciously, kindly or courteously.

(a) To come to (into etc., a place or proceeding:

(b) To do something assumed to the agreeable:

(c) To request, (d) to try to attract or induce; Of a thing: to present inducements to (a person) to do something or proceed to a place or action,

(e) to tend to bring on; to attract physically.

14. The meaning of the word invite as given in Funk and Wangnalls New Standard Dictionary of the English Language, reads:

(1) to ask to do some act or go to some place; request the presence or the action of, usually as a favour or courtesy; (2) to draw by means of temptations or allurements.

Strouts Judicial Dictionary of Words and Phrases, IV Edition, Volume 3, at page 1423, gives, the definition of invitee thus:

An invitee means a person invited to the premises by the owner or occupier for purpose of business or of material interest.

15. In view of our finding that the taxi driver (P.W.-3) entered into the level crossing in spite of the warnings given by the gateman, we hold that the taxi driver does not come under any of the definitions of the word invitee mentioned above.

16. The next question is whether P.W. 3 was licensee. Strouds Judicial Dictionary, IV Edition, Volume 3, at page 1539, defines the word licensee as follows:

A licensee is a person who has permission to do an act which without such permission would be unlawful.

17. It distinguishes invitees stating that invitees are persons who enter upon premises not as mere volunteers or licensees or guests or servants or persons whose employment is such that danger may be considered as bargained for, but who go upon business which concerns the occupier and upon his invitation, express or implied, and further states that the leading distinction between an invitee and a licensee is that in the case of the former, the invitor, and the invitee have a common interest, while in the latter the licenser and the licensee have none. While dealing with invitees and licensees, the House of Lords in Robert Addle and sons (Collieries) Limited v. Dumbreck 1929 A.C. 358 held that the highest duty exists towards those persons who fall into the first category (viz., invitees) and who are present by the invitation of the occupier. Towards such persons, the occupier has the duty of taking reasonable care that the premises are safe. In case of persons who are not there by invitation, but who are there by leave and licence, express or implied, the duty is much stringent-she occupier has no duty to ensure that the premises are safe, but he is bound not to create a trap or to allow a concealed danger to exist upon the said premises, which is not apparent to the visitor, but which is known or out to be known to the occupier. Applying the above principles to this case, when the gates are opened and no warning is given, the public are permitted to cross the level-crossing, i.e., to pass through the land belonging to the Railway within the level-crossing and to that extent they fall under the category of licensees during such periods. But, the moment the public come to know or have reason to believe about the approach of any train or enginewhatever may be the source through which they acquire such knowledge, or example, the ringing of the gongs for the burning of the red-lights, the warning given by the gatemen, etc.;they are-expressly prohibited under S. 124 of the Railways Act from crossing the level-crossing. In such contingencies they would fall under the category of trespassers. On the evidence adduced in this case, it cannot be said that P.W. 3 was either an invitee or a licensee, because, as we have already pointed out, the driver P.W. 3 of his own accord and risk entered into the level crossing in utter disregard of the warnings and without the consent and permission of the gateman. So, the duty of the occupier (Railway) to the invitee or licensee does not at all arise in this case.

18. When P.W. 3 does not fall within the categories of invitee and licensee necessarily he has to fall under the third category trespasser.. The Draft Indian Penal Code, by S. 418, defined the Word trespasser thus Whoever exercises any dominion over any property, not having a legal right, independent of the consent of any other party to exercise such dominion, and not having the consent, express or implied, of any party legally entitled to give a consent which would authorise the exercise of such dominion, is said to trespass. Halsburys Laws of England III, Edition, Volume 38, defines the word trespass as follows:

Trespass is a wrongful act-done in disturbance of the possession of property of another, or against the person of another, against his will. To constitute a trespass the act must in general be unlawful at the time when it was committed.

19. Here, in this case, P.W. 3s act of entry into the railway track at the relevant time was unlawful as per S. 124 of the Indian Railways Act. From the above discussion, there can be no doubt that P.W. 3 was trespasser when he was on the track.

20. Then we have to examine the duty of the occupier towards a trespasser. The House of Lords in Robert Addie and Sons v. Dumbrek 1929 A.C. 358 has observed at page 365 thus:

Towards a trespasser the occupier has no duty to take reasonable care for his protection or even to protect him from concealed danger. The trespasser comes on the premises at his own risk. An occupier is in such a case liable only where the injury is due to come wilful act involving something more than the absence of reasonable care. There must be some act done with the deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the presence of the trespasser.

This principle has been followed in almost all the English Cases. In Videan and another v. British Transport Commission (1963) 2 Q.B. 650. Lord Denning, M.R. has observed:

The simple test of foreseeability is sufficient to explain all the reported cases on trespassers, though not all the statements contained in them. All the circumstances must be taken into account to see whether the consequence is within the risk created by the negligence; but that principle applies only where the occupier or a contractor or any one else conducts activities on land and not where an occupier has done no work on land, for then his liability is an occupier and nothing else.

Lord Atkin in Hillen and Pettingrew v. I.C.T. (Alkali) Limited 1935 A.E.R. Rep. 555 at 558; 1936 A.C. 65 at 70: observes:

I know of no duty to a trespasser owed by the occupier other than when the trespasser is known to the present to abstain from doing an act which, If done carelessly, must reasonably be contemplated as likely to injure him, and, of course, to abstain from doing acts which are intended to injure him.

In Commissioner for Railways v. Francis John Quintain 1964 A.C. 1054 (P.C.); 1964 (2) A.E.R. (P.C.) 897, the respondents truck, which was loaded with building materials and which he was driving over the crossing, was struck by a train and the respondent was injured. The respondent had not obtained the permission to use the crossing. Their Lordship, while holding that he was a trespasser, approved of the rule of the English Common law stated by Hamilton, L.J. with maximum brevity in Latham v. R. Johnson & Nephew Ltd. (1912) 1 K.B. 398 29 T.L.R. 124 C.A.

The owner of the property is under e duty not to injure the trespasser wilfully; not to do a wilful act in reckless disregard of ordinary humanity towards him; but otherwise a man trespasses at his own risk.

21. Their Lordships felt that the above words laying down the content and limits of the duty owed by the occupier towards the trespasser did not admit of much qualification or invite the skill of the amplifier. Accordingly, the appellant was held not liable to the respondent in damages. The above principle is well considered in a recent decision of the Privy Council in Southern Portland Cement Limited v. Redeny John Cooper (1974) 2 W.L.R. 152. It was held that since the duty of an occupier towards a trespasser was based not on the relationship forced upon him but on considerations of humanity, the occupiers duty only arose if he had knowledge of, or had created, the danger on his land that no unreasonable burden was to be placed on an occupier and, accordingly, an occupier was entitled to consider all the disadvantages to himself in taking action for the protection of trespassers and weigh them against the degree of likelihood of trespassers and the degree of hidden or unexpected danger to which trespassers might be exposed. But, since the trespasser in that case was a child age 12 years and since the occupier-appellant knew that children were likely to trespass on the land and of the likelihood of such children coming into contact with the danger on the land (electricable on the sand hill). Their Lordships had to hold that the occupier was liable. However, the principle laid down in Commissioner for Railways v. Francis John Quintain 1964 A.C. 1054-1964 (1) A.E.R. 897 has been reiterated.

22. Bearing the above-said principles in mind, we have to consider from the evidence on record and on a panoramic view of all the circumstances of this case, the place where the trespass occurred, the nature of the danger etc., whether the engine-driver D.W. 2 did not know of and did not have good reason to anticipate, the presence of the trespasser P.W. 3 on the railway track at she time of accident. The evidence of D.W. 3 is that after getting green signal at Kodambakkam, he was running the train at a speed of 30 miles per hour with the engine search-light on and because of the curve in the track just 50 yards north of the gate, the gate in question was visible only when the engine was about 30 yards north of it and not 200 yards as suggested by the learned counsel for the appellant. However, the evidence of D.W. 3 cannot be controverted, because be is the man who has sighted the taxi at a distance of 30 yards. Moreover, it is the evidence of P.W. 3 himself that when his vehicle was on the eastern-most railway track, he heard people shouting that the train was approaching and that the impact occurred within two or three seconds of that noise. So, ever thing would have happened within two or three seconds. Even on this admission of P.W. 3, the version of the engine driver that he sighted the taxi at a distance of 30 yards is acceptable, and the train would have taken only two or three seconds to cover the said distance at the rate of 30 miles per hour. It is the evidence of D.W. 3 that he applied the brakes immediately, but he could not stop the train on the spot, and in spite of the application of brakes, the train moved on and stopped at a distance of 100 yards after the impact. Mr. K. Ramaswami, appearing for the appellant, argued that there is an inconsistent version between the evidence of D.W. 2 and that of D.W. 3 regarding the showing of the danger signal by the gateman to the in-coming train. This inconsistency is immaterial, because D.W. 3 would say that even if he had seen the danger signal, the train could not have been stopped before reaching the gate. When the driver did see the taxi on the track, there was no sufficient time for him to pull up or to bring it at halt by applying the brakes before the impact took place. He has stated in Ex. P.-10 before the Enquiry Committee that he whistled before approaching the obstruction. Under these circumstances it cannot be said that the driver did not take any precaution against the possibility of the occurrence. It stands to reason that in a moment of extreme peril and difficult position, when the danger is unforeseen and mostly unexpected, D.W. 3 cannot be expected to have a perfect presence of mind, accurate judgment and promptitude. It is quite clear from the evidence and the manner in which the occurrence has taken place, that upto the last stage of the incident, D.W. 3 had no reason to anticipate the presence of the car on the track. Moreover, by no stretch of imagination can it be said that there was a wilful or reckless disregard by the engine driver of the presence of the taxi driver P.W. 3, so as to constitute a breach of duty on the part of D.W. 3 or lack of humanity or any failure to perform any lawful duty on his part. Under these circumstances, the engine driver also cannot be attributed with want of nerve or skill which would amount to negligence. So, we hold that the engine driver did not cause the impact either by his wilful negligence or reckless carelessness towards the trespasser.

23. For the foregoing discussions, we hold that P.W. 3 committed the unlawful act of trespass into the railway track and the accident was not caused due to any negligence on the part of the Railway Administration or its staff; but, on the other hand, it could not be averted in spite of the best efforts taken by the Railway Administration. So, the plaintiff, as the owner of the taxi, has no cause of action against the Railway Administration.

24. In the result, we confirm the decree and judgment of the Court below and dismiss this appeal with costs. The court fee, due on the appeal memorandum will be paid by the appellant.