E.C. D'' Cruz vs Emperor

James, J.—At about 11 p.m. on the night of the lunar eclipse on 27th September 1931, a number of persons were walking by the railway line from Sonepore to the Ganges at Paleza, when on a small bridge which crosses the Mahi stream, four or five miles from Sonepore, a train coming from the opposite direction met them, with the result that some of them attempting to avoid the train, fell or knocked into the river and four were killed.

At the joint enquiry the driver of the train was exonerated from blame, and the same view was taken by the Sub-divisional Magistrate who held an independent inquiry. His view was accepted by the District Magistrate and by the Local Government; but for some reason or other, which has not been made clear the driver was subsequently prosecuted on charges framed under the Railways Act.

It was alleged that as he approached the bridge, some men who had safely crossed it called out to him to stop, but that he took no notice of their cry; and that later when the guard made signals to him to stop, he ignored the guard''s signals. He was placed on trial on charges framed under Sub-Ss. (a) and (c), Section 101, Railways Act. The charge u/s 101(c) was to the effect that the driver endangered the safety of persons travelling on foot by not stopping the train, when certain people shouted to him to stop. u/s 101(a) he was charged with disobeying Rules 101, 102, 123 and 131 of the rules framed under the Act. Rule 101 requires the driver to obey the order of the guard in the matter of starting and stopping the train; Rule 122 requires him to keep a good look out; Rule 123 requires him to look back frequently; and by Rule 131 he is to require to whistle on approaching a major bridge.

Mr. B.N. Mitter on behalf of the petitioner argues in the first place that the conviction u/s 101(c), Railways Act, cannot be sustained because it is not the driver''s duty to stop merely because somebody at the side of the permanent way may shout to him "roko gari." Arguing against the conviction u/s 101(a), Mr. B.N. Mitter denies that the engine driver committed the acts of negligence alleged against him; he denies that the guard made any effective singal to the driver to stop; or that the driver failed to whistle on approaching the bridge. But he further argues that on the evidence before the trial Court, it did not appear that any infraction of Rules 101 and 122, or Rule 123 could have endangered the safety of any person.

According to the evidence the engine must have been well on its way across the bridge before the guard made any signal at all, since he was at the rear of the train and he says that it was on immediately approaching the bridge that he perceived the danger. The train had no vacuum brake; and a Locomotive Inspector of the Bengal and North Western Railway has proved that it could not be stopped within a distance of 150 to 200 yards when going at the rate of ten miles an hour. The bridge was only 160 yards long so that even if the guard had signalled, and if his signals had been obeyed, the danger would not have been averted. Mr. B.N. Mitter further argues that on these questions of whether the guard signalled or of whether the driver was negligent in failing to obey the signals, or of whether he failed to whistle, the most important witness has been treated by the trial Court as if it were inadmissible amounts to an error of law.

Now in the first place, weight must be given to the argument on behalf of the petitioner that even if he heard men shouting to him to stop the train failure to stop it could not be regarded as a breach of duty unless he had been able to perceive that there were people on the bridge. The night was dark under the eclipse; the train had only buffer lights and the Locomotive Inspector, whose evidence was completely ignored by the trial Court has proved that with such lights nothing could be seen beyond the engine on a dark night. The same witness also proves that when the engine was on the bridge it would have been difficult for the driver to hear people shouting.

The conviction u/s 101(c) was therefore apparently bad because in the first place, the charge framed discloses no offence, since it was not the duty of the driver to stop the train merely because wayfarers shouted to him; secondly, because it has not been shown that the driver must have seen that there was any danger in his going on.

I come now to the conviction u/s 101(a). The argument of Mr. Mitter may be accepted in the first place that even if Rules 101, 122 and 123 had been obeyed, the accident would not have been averted, since the signals of the guard must have been made too late. Rule 131 requires the driver to whistle on approaching a major bridge. It appears from the evidence of the Inspector of Ways and Works and that of the Locomotive Inspector that although for engineering purposes any bridge covering sixty feet of water-way is called a major bridge there is another class of bridges known as important bridges with six hundred feet or more of water-way, which are understood by drivers to be the major bridges for Rule 131. The Locomotive Inspector says that the only bridge near Sonepore which drivers regard as a major bridge is the great bridge over the Gankah.

I accept the argument of Mr. Mitter that the evidence of the Locomotive Inspector has been too summarily dismissed by the Courts below, and they committed the error which amounts to an error of law in regarding this bridge as one of the kind to which reference is made in Rule 131. The drivers have regarded the rule as applying to what are known as important bridges; and it is not fair when an accident does happen, to charge a driver with breach of the rules because in the accounts and engineering departments comparatively small bridges are called major bridges.

Apart from these grounds for questioning the legality of the conviction, Mr. Mitter points out that no passenger of the train was produced to say that he saw the guard signalling to the driver to stop the train. The guard says that he made his signal first by jerking his hand-brake, but it appears from the evidence of the Locomotive Inspector that on a train made up as this train was, such a signal would have been difficult to perceive at the engine. The guard further says that after he had failed to stop the train by working the handbrake he waved a red light to the engine driver to stop.

The driver is convicted on three grounds, for neglecting this signal, for not obeying the order of the guard, for failing to keep a good lookout, and for failing to look back frequently. Mr. B.N. Mitter argues that the evidence of the guard that he made these signals ought not to have been accepted, in face of the evidence of the fireman; and he points out that the guard says that he waved his red light all the way to Sonepur though it does not appear that any useful result would have been achieved by doing it after the bridge had been crossed. The most important witness on this point is Janki Dusadh, the fireman. The witness says that he never saw the guard showing any red light which may possibly have been due to the fact that the train was crowded and that people were standing on both sides of the foot-board. The evidence of this witness is dealt with in the following manner by the learned Magistrate:

Janki was the deputy fireman who was with the driver that night. He cannot possibly make any statement against the driver who is superior to him. His evidence is not entitled to any weight.

This summary disqualification of the most important witness in the case is in my judgment sufficient to vitiate the whole decision. Janki Dusadh, so far being a disqualified witness, is the most important witness; although if there were other grounds for disbelieving him than those given by the learned Magistrate, his evidence would not of course be necessarily accepted. He cannot be summarily treated as a disqualified witness merely because he was subject to the orders to the engine driver; and his evidence is sufficient to show that no signals from the guard could be perceived on the engine. On the question of whether the driver whistled before approaching the bridge, it appears to be clear that failing to whistle before approaching this small bridge would not be an offence under the Railways Act.

But it also appears that the driver did whistle. Janki Dusadh says that he whistled; and the only witness examined who were passengers on the train say that they heard the engine whistle once when the train started; again when it approached the bridge, (apparently the Gandak bridge) and again when it approached another bridge, which would indicate that the driver actually did whistle on approaching the bridge. There is force in the argument of Mr. Mitter that the evidence of persons who noticed the whistle is of more value than that of any persons who failed to notice it; and no adequate reason has been given for not accepting the statements of those passengers who gave evidence for the defence, who did hear the whistle.

The point is of small importance, because the driver broke no statutory rule if he did not whistle. The engine-driver throughout did nothing wrong.

The conviction of the petitioner must be set aside. He will be acquitted and discharged from the bail.