East India Railway Company vs Jago Ram

ReginaldRoe, J.—The facts of this case are that the plaintiff consigned a number of tins of ghee from Palmerganj to Calcutta, a distance of over three hundred miles. Either before the journey commenced or daring the journey, sixty-two of these tins weighing nearly a ton disappeared. The plaintiff, therefore, brought a suit for damages against the Railway. The Courts below have made a decree in his favour on the ground that although the goods were despatched, under a risk-note making the Railway liable only in the case of willful negligence the evidence on the record justified the inference that there had been willful negligence. In second appeal it is argued that the question of willful negligence is a mixed question of fact and law, and therefore this Court is required to go into the evidence on the record and satisfy itself that legal willful negligence has been proved. Failing that, it is urged that there is no direct allegation of willful negligence in the plaint and nothing in the evidence of the plaintiff to show negligence at all on the part of the Railway, and that the Judge if he had been assisted by a Jury, would have been required to direct the Jury as soon as the plaintiff''s case was closed that there was no evidence on which they could give a verdict. Further it is urged that the Railway did substantially prove that the goods were lost through a running train theft, and that the words running train robbery which in the risk-note, is a specific cause of loss against which the Railway is protected, includes an ordinary running train theft.

We may take firstly the question whether it was the duty of the learned Subordinate Judge in the first instance to refuse to go further into the case when upon the plaintiff''s own evidence there was nothing to show willful negligence. It is true that the learned District Judge has recognised that the burden of proof was on the plaintiff to show that his case came within one of the exceptions stated in this risk-note. It also may be true that if the defendant company had when the plaintiff had finished his evidence, adopted the course now suggested that is to say, had it declined to enter into evidence and relied upon the fact that there was from the plaintiff''s side no evidence of negligence, the Court would have had not option but to dismiss the plaintiff''s suit. But the Railway Company were not content with this. It undertook to show that it had taken all reasonable precautions. Both the Courts below were of opinion that it had entirely failed to show this. The District Judge went further than the Subordinate Judge. The Subordinate Judge on an erroneous application of section 76 to questions involved in cases in which the Company is protected by a risk-note, had thrown the burden upon the defendant of due diligence. The learned District Judge set himself to show that from the witnesses produced by the defendants themselves, there was evidence upon which willful negligence had been proved. We are not in sympathy with the argument of the learned Vakil for the appellants that having all this evidence before him the learned Judge should not have regarded it at all, but should have decided the case upon the plaintiff''s evidence alone. Having placed the evidence upon the record the Company cannot say that it was not to be taken into consideration. Nor are we in sympathy with the suggestion that the plaint itself disclosed no cause of action. It stated simply that the Company undertook to carry goods and failed to deliver them. The written statement stated that as the Company was protected by a risk-note it was not liable. Had the written statement stopped there, the case might possibly have been dismissed on the pleadings. But the written statement did not stop there. It set forth a substantive case that the goods had been lost owing to a running train robbery. It would have been open to the Company no doubt to confine its written statement to the production of the risk note. It would have been the duty of the Court to call upon the plaintiff to amend his pleadings by specific allegations of willful negligence, but seeing the nature of the defence put up by the Company, there was no necessity for any amendment of the plaintiff''s statement of the facts.

It has always been held in the Courts in England that the Judge''s duty is merely to gay to the Jury that there is or is not evidence on the record which they must consider. If he rightly directs the Jury to take into consideration the facts indicated by the evidence, the verdict of the Jury as to the bearing of those facts upon the question of willful negligence, is a final verdict and cannot be disturbed in appeal. The learned Judge set put a number of facts apparent on the record from which he held that willful negligence might be deduced. There had been a suggestion in the cross-examination of the defendants'' witnesses that the carriage door was not locked, and no attempt had been made to get rid of this suggestion. This cross-examination also indicated that the only precaution taken with this valuable consignment, was the affixing of a leaden seal which might be broken without difficulty. The discovery of the breaking of the seal was made on the night upon which the theft probably occurred. It was suggested by the learned Judge that if proper steps had been taken immediately to check the contents of the wagon, the bulk and weight of the goods lost was such that prompt action would have resulted in the recovery of at least a great part of the stolen goods. Speaking for myself I do not propose to consider for a moment whether or not the Judge should have found on these facts that there had been willful negligence on the part of the Railway. I am certainly of opinion that it would have been extremely wrong for a Judge with all these facts upon the record to have informed a Jury that there was no evidence at all on which they could base a verdict. That being so. I am of opinion that the learned Judge''s decision was a final decision on the question of negligence, and in this conclusion I am fortified by the decision in Metropolitan Ry. Co. v. Jackson (1878) 3 A.C. 193; 47 L.J. C.P. 303; 37 L.T. 679; 26 W.R. 175 in which it is said: "In an action arising for personal injuries by negligence, it is the province of the Judge to say whether there is evidence from which negligence may be reasonably inferred, and of the Jury (if the evidence is left to them) to say whether it ought to be inferred."

In Voughan v. Menlove (1837) 3 Bing. (N.C.) 468; 4 Scott 244. 3 Hodges 51; 6 L.J.C.P. 92; 1 Jur. 215; 132 E.R. 490; 43 R.R. 711 it was stated by Tindall, C.J., that "The care taken by a prudent man has always been the rule laid down; and as to the supposed difficulty of applying it, a Jury has always been able to say whether, taking that rule as their guide, there has been negligence on the occasion in question".

A similar view was taken by the Judicial Committee in Madras Railway Co. v. Zamindar of Carvetnagarum 22 W.R. 279; 14 B.L.R. 209; 1 A. 364; 3 Sar. P.C.J. 391 (P.C.). At page 282, it is stated: "Negligence consists in the omitting to do something that a reasonable man would do, or in the doing something that a reasonable man would not do, in either case unintentionally causing mischief to a third party...... Their Lordships are unable to say that the case has been decided on an erroneous view of the law. On the question of fact whether or not negligence was proved by the evidence, they see no sufficient reason for departing from their ordinary rule of not disturbing the concurrent finding of two Courts".

The position, therefore, is that we as Judges of law have in second appeal to decide whether there was evidence to put before a Jury. I am of opinion that there was evidence that should have been laid before a Jury, and holding that opinion I must decide that the learned Judge''s decision on the facts, was as final as a Jury''s verdict would have been.

With regard to the last ground taken it is sufficient, to say that theft is not robbery unless violence goes with the theft. I would dismiss this appeal with costs.

Sir Ali Imam, Kt., J.

I am in complete agreement with the decision given by my learned brother. This second appeal is concluded by the finding of fact on the question of willful negligence. The contention that that question it one that should not have at all been treated by the lower Appellate Court inasmuch as there was a total absence of evidence before the Court to support the allegation of willful negligence, has little substance. The grounds stated in the judgment of the learned Judge show that there was evidence bearing upon the question of willful negligence. The probative value of that evidence was for the Judge to consider. So far as we here are concerned, we are bound to accept the decision of the learned Judge on the question of willful negligence as ascertained by him on the evidence. Therefore I agree that this appeal should be dismissed with costs.