Kally Dass Mookerjee vs The East Indian Railway Company

In this case the Plaintiff is the father, and the administrator of the estate, of one Atindra Nath Mookerjee who was fatally injured on the 27th of April 1896 while travelling as a passenger on the East Indian Railway between the stations of Secundrabad and Dadri: Atindra Nath Mookerjee died on the 5th of May 1896 of the injuries sustained by him, and the Plaintiff 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 claimed as 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 loss to the estate of Atindra Nath Mookerjee, such loss also having been occasioned by the neglect of the Defendants. As to this latter portion of the relief claimed by the Plaintiff I may say at once that no evidence has been given to show that any pecuniary loss or damage was caused to the estate of Atindra Nath Mookerjee by the neglect complained of, and I therefore dismiss this portion of the claim.

The case for the Plaintiff is that on the 25th of April 1896 Atindra Nath Mookerjee purchased from the Defendants a 3rd class ticket from Bally in the District of Hooghly to Rawal Pindi and proceeded on his journey, that on the 27th of April while on that journey the 3rd class carriage in which Atindra Nath Mookerjee was being carried caught fire owing to the negligence of the Defendants and he was severely burnt in different parts of his body; that he was further injured by falling through the burning floor of the carriage, and in consequence of these injuries he died on the 5th of May 1896.

Specific charges of the negligence and improper conduct which the Plaintiff brings against the Defendants are set forth in the 2nd and 3rd 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 improper conduct of the servants of the Defendants and in violation of the rules in that behalf had been allowed to be carried in the carriage by certain persons other than Atindra Nath Mookerjee; secondly, that at the time the fire took place the doors of the carriage were locked owing to the negligence and improper conduct of the Defendants, and that thereby Atindra Nath Mookerjee was prevented from escaping from the burning carriage; and thirdly, that owing to defective arrangements in the connection cord and other appliances of the train to which the carriage was attached (such defective arrangements being the result of negligence and improper conduct on the part of the Defendants) there was great delay in bringing the train to a stand and by reason thereof the escape of Atindra Nath Mookerjee from the burning carriage was prevented. Finally there is a general charge that the death of Atindra Nath Mookerjee was caused by the wrongful act, neglect or default of the Defendant Company and their servants.

The Defendants do not admit the Plaintiff''s right to institute this suit, or that they entered into any contract of carriage with Atindra Nath Mookerjee. They deny that they or their servants were guilty of any negligence, unskilful or improper conduct regarding him. They deny that the doors on both sides of the carriage were locked at the time the fire took place, and they also deny that the arrangements in reference to the connection cord or any other appliances of the train were in any way defective. The 2nd paragraph of the written statement is as follows:--" The Defendants admit that on the 27th of April 1896 certain fire-works or bombs exploded in a 3rd class carriage forming part of the train known as the No. 5 up Bombay mail, at mile No. 926-]- on their Railway, between Secundrabad and Dadri stations, and several passengers in the said train were injured by the said explosion, but they deny that the said explosion was due to any negligence or improper conduct on the part of themselves and their servants or that their servants allowed or permitted the fireworks and bombs to be carried by any person in the said train as alleged in the second paragraph of the plaint.

From the evidence given at the hearing it appears that Atindra Nath Mookerjee who was the son of the Plaintiff was a clerk in Government service in the Arsenal at Rawal Pindi. He was on leave of absence in the month of April 1896 during which time he lived with his father at Agarparah in the District of 24-Pergunnahs. On the 24th of April 1896 he proceeded to join his appointment at Rawal Pindi. On that day he went to Bally from Agarparah and stayed the night in the house of Sarut Chunder Chatterjee, the husband of the Plaintiff''s sister. On the next day Atindra Nath Mookerjee left for Rawal Pindi by the train leaving Bally at about 2 o''clock in the afternoon. He obtained a 3rd class ticket for the journey which was purchased for him by Sarut Chunder Chatterjee. This afternoon train is called the No. 5 passenger train, and it preserves that name all the way from Calcutta to Tundla near Agra where the Indian Midland Railway joins the East Indian Railway. At that place the No. 5 passenger train becomes the No. 5 Up Bombay Mail which name it retains from Tundla on to Ghaziabad if not during the whole of the journey on to Kalka. At Tundla there are extensive changes made in the No. 5 up passenger train. The changes that were made in the train by which Atindra Nath Mookerjee was travelling appear to have been as follows :--The engine which had taken the train from Calcutta to Tundla was taken off and another engine known as No. 96, class F, was attached to the train. Two carriages belonging to the Great India Peninsular Railway and another to the Indian Midland Railway were attached to the rear of the train; a brake-van belonging to the Indian Midland Railway which was found to be defective at Tundla was taken off and another brake-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 other to a wheel in the guard''s van at the rear of the train. When the train was finally made up at Tundla it consisted of the engine No. 96 with its tender, both of which were fitted with handbrakes, a brake-van also fitted with a handbrake, fourteen carriages of different classes belonging to the East Indian Railway Company, two carriages belonging to the other lines which I have mentioned above and the guard''s van at the end of the train. Before this train left Tundla the communication cord was tested and found to be in good working order, and so far as I can gather from the evidence the train, when it left Tundla, was in a fit condition for the journey before it. On the 27th of April 1896 the train arrived at Aligurh about noon, there it stopped 10 minutes after which it proceeded on its journey to Secundrabad where it arrived shortly before 2 o''clock in the afternoon. It then proceeded on towards Dadri, and it was on the way between these two stations when the fire broke out which caused the deaths of Atindra Nath Mookerjee and eleven other persons. At this time the train was running on a down grade of one in five hundred at a speed of 33 miles an hour.

Leaving aside for the moment the documents which have been put in evidence-as throwing light upon the occurrence of the fire, three witnesses have been examined with reference to it on behalf of the Defendants. These are William Henry Derry, a permanent way inspector in the employment of the 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 an officer''s joint enquiry into the cause of the accident which was held at Ghaziabad on the 1st of May 1896, and there is also the statement of Noor Ally, the brakesman of the forward brake-van who was also examined upon that enquiry. Derry seems to have been the first person who noticed the fire. He was in a second class composite-carriage which was the fourth vehicle from the rear of the train. Two carriages belonging to the Indian Midland Railway and the Indian Peninsular Railway were the only carriages between him and the guard''s van. He says that the first thing he noticed was a smell of oily burning jute; that upon perceiving this he looked out of the carriage on both sides along the axle boxes thinking an axle box was running hot but he saw nothing; about two minutes afterwards a volume of smoke passed the carriage in which he was sitting. He jumped up, and as he did so there was a loud explosion. He looked out and saw a ball of fire drop opposite the carriage in which he was on the right-hand side. He then goes on to say, " I immediately opened the carriage door seeing there was something seriously wrong. With my face in the direction 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 object of sounding the whistle. I pulled in eight or ten feet. I then released the cord as it was useless my hanging on to it, having done all I could. I then looked to the guard''s brake and saw him exhibit a red flag. I pulled in the cord that the stock 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 the red flag I motioned to the guard to apply the brake and wind up the cord. He motioned back to me that he had done so. Seeing the confused state of the passengers I got out and walked to the rear brake-van on the foot-board telling the passengers not to be alarmed as the train was coming to a stand. I noticed the speed slackening when I got out of the carriage to go back. I saw the ball of fire at mile 925, telegraph post 16, gate No. 36. I went along the foot-boards back to the rear part of the brake. As soon as the train slackened speed sufficiently to allow me to run faster than it was moving, both I and the guard jumped out and ran ahead so that by the time the train had come to a stand we were practically opposite the burning vehicles. Before the train stopped the passengers were tumbling or jumping from the train. They were either tumbling, or jumping I cannot say which it was. I cannot say exactly where the first person 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 mils from where I saw the fire.

Hyrapiet, the guard, says :--"A loud reports sounding from the front part of the train first attracted my attention." * * * * * "As soon I heard the report, I looked out and saw smoke issuing from the centre part of the 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 the lobby door and put out the flag on the right side. I observed the permanent way inspector Mr. Derry beckoning me to put on my brake. He was in the third or fourth 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 something radically wrong. I also then noticed men on the footboards. In the meantime the train slackened speed and came to a stand. It was just a few posts past mile 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 third class carriage on fire, I immediately detached the third class carriage from the rear part of train and signalled to the driver to pull up the train. Before uncoupling the rear part I had seen Mr. Derry. He was standing by. I saw the driver coming from the engine, He said something to Derry and then went back to the engine. Then I told the brakesman to detach the two burning carriages from the front portion of the train. He did so, and I signalled to the driver to pull up ahead.

The account of the accident given by William Gibson, the driver, is as follows :--

The whistle was opened wide. That was the first thing I noticed. I looked back without altering any position and saw the brakesman in the front brake showing the red signal. I immediately shut off steam and put the tender brake on, at the same time telling my second Native fireman to put the engine brake on. When I had tightened up the tender brake I looked back upon that side of the train. I saw a number of people on the foot-boards of some carriages. I stepped to the left-hand side of the engine, reversed the lever, opened steam to the cylinders and steam to the steam-sanding gear. I then looked down on the left-hand side of the train and saw flames issuing from some of the carriages. As the engine slackened speed I jumped off and went back. Where I saw people standing on the foot-boards, it was towards the centre of the train. The brakesman was showing the red flag. I looked back on both sides of the train. I do not remember seeing the guard when I looked back. The place where I jumped off was on mile 926 near a culvert. I cannot tell exactly where by reference to the telegraph posts. After I got down, the train may have gone about ten yards. It was about 500 yards from the place where the whistle sounded to the place where the train stopped. I did not notice at the time what mile 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 inspector Mr. Derry. I told him to detach the burning vehicles and I would draw the train up. He said he knew what to do and told me to go back to the engine and he would give me the signal, I met him seven or eight carriages from the engine. I went back to the engine and having received the signal from both Deny and the guard, and seeing that the passengers were clear of the vehicles I drew the front part of the train for about 50 yards when I got the signal to stop. The burning vehicles were then detached from the front part of the train. I received signals and drew that portion of the train another 50 yards when I again received signals to stop

According to the evidence of Mr. Derry, the explosion occurred on mile 925, at telegraph post No. 16, gate No. 36, and the train stopped with the burning vehicles at mile No. 926, telegraph post 15, nearly a mile from the place where he saw the ball of fire. According to the evidence of Gibson, the train was drawn up to standstill within 500 yards of the place where the whistle sounded. Assuming that he means 500 yards from the place where his brakes came into full action even then the train must have proceeded about a thousand yards after the explosion occurred before the driver''s attention was attracted, and this delay has not been clearly explained. I am inclined to think that neither Derry nor the guard acted with the promptitude their evidence would seem to shew, but it must be remembered that from the explosion to the stopping of the train was hardly two-half minutes. Allowance must be made for the surprise of the moment, and a very slight delay in taking action would account for a good deal of the time during which the connecting cord remained unused and the whistle silent. This delay may have been partly due to the fact that the guard stopped to apply the brake to his own van before pulling the communication cord, or it may have been partly due to interference with the communication cord by Derry and the other passengers in the train, when the accident occurred. Indeed the connecting cord itself may have become defective owing to the explosion, for though the whistle was undoubtedly sounded, it is not clear by whom the cord was pulled at the time or from what part of the train that was done. I can find nothing to blame in the action of the train officials from the time the explosion took place till the train came to a standstill. I think they did the best they could under the circumstances.

What happened after the train stopped and the burning carriages were detached was as follows: The front part of the train was taken by the driver Gibson to Dadri Station. He says it was ten or twelve minutes past two in the afternoon when the train was brought to a standstill, that about twenty minutes after that he left for Dadri and reached there at about quarter to three. From there he sent two telegrams to Ghaziabad for additional carriages to convey the wounded passengers and for medical assistance. Having done this, he proceeded back to Dadri with a bhistee and some porters, arriving there at about a quarter to four. In the meantime what happened at the scene of the accident was this. The guard and some of the European passengers went back on the line towards Secundrabad for the purpose of picking up the wounded, but finding it impossible to carry them back to the train the guard and Derry with the assistance of the European passengers and some coolies shunted the guard''s van back to gate No. 36 which Derry fixes as the place at which the explosion occurred. What took place with reference to assisting the injured persons is told by the guard Hyrapiet and by Derry. Hyrapiet says-- "After the first portion of the train left for Dadri I went with some military officers who were passengers in the train to search for the person who had fallen out of the train. 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 further from the burning carriages which were the 7th and 8th carriages from the rear of 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 out the first man. There was a Major Grant also there. This officer Maclean went with me when I went to search for the men. There were three coolies but no other Europeans. I volunteered to carry the wounded man to the brake-van. The officer picked up the man and put him on my back and I carried him to the brake-van. I don''t know the name of this wounded man. Captain Maclean accompanied me to the van. We got hold of a blanket, put the man into the blanket and lifted him by holding the four corners of the blanket into the van. I was completely done up with the heat and the picking up of the man. I consulted the military officers and decided that it was advisable to detach the van and push it along the line. I did this with the assistance of the coolies and the military officers. There was another man carried by a military officer in his arms. This other man was found over the fencing wires about 50 yards from the man I picked up. He too was carried to the brake-van. We hand-shunted the brake-van down the line and picked up the men who were lying on both sides of 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 heard the report. I say that because there was a third class carriage door lying there. The report which I heard was the bursting of a third class carriage door. The door and some of the splinters were lying there then. I cannot say if it was a door belonging to a third class carriage or to the combined postal and third class van. I cannot say if I found more than one door. There was a door and a lot of broken pieces. They were on one side of the line almost opposite the gate on the right facing Dadri that would be on the east side of the line. There was a passenger completely charred and burnt almost shapeless just about a few yards from there. He was dead, I thought it best to leave the body there with a man in charge." Then he says :--" I forgot to say that I 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 in the centre and the bamboos were burnt. They were slips of bamboo. From what I picked up I could say that the diameter of the bamboo was about 21/2 inches. At that time I did not know what they were, but the military officer told me to look after them and lock them up in my box. I could not swear to the exact length of the pieces of bamboo. I should say it was between six and eight inches. I subsequently made them over to the police. These were picked almost where the dead man was, a little past the gate almost close to where the carriage door was found." Then he says: "An English-speaking Bengali clerk was picked up half way between the gate house and where the train stopped. I can''t say if there were more Bengalis than one amongst those I picked up. I noticed a few Marwaries were there. The Bengali lad was picked up clear of the rails. I cannot say exactly the particular spot. At that point the fencing would be about 18 or 20 yards from the rails." Having got all the wounded passengers into the van the guard tried to relieve the sufferings of the wounded and with the aid of some coolies the van was shunted back to the rear portion of the train. By that time the driver had returned with the front portion of the train from Dadri, and oil was obtained from him for the purpose of putting upon the wounds of the injured persons.

Derry''s account of the picking up of the wounded and dying is this--After he had sent the driver to Dadri he noticed that one of the passengers who had jumped out, was being picked up by another passenger. He says: " I went to his assistance. The guard was there too. The wounded man was brought into a second class carriage and I attended to him. One of the gentlemen passengers and myself then walked back to attend to the burnt people that were lying on the road. The brake van was uncoupled and shunted back. This gentleman and myself went on ahead and the brake-van followed us. We walked hack to gate No. 36 and gave water to the wounded and shade to those lying in the sun. My gangmen, line men, they were working close by, they came running up, they had blankets and we tied them to trees to give shade from the sun. I saw all the injured passengers. Among them I saw one young Bengali Babu. I cannot say what his name was. There was only the one Bengali injured. He was about 40 or 50 yards from the gate No. 36 on the Ghaziabad side. He was lying on the left hand side in what we call the three foot way. That would be about 6 feet from the rail on the left-hand side of the line. He was conscious. I spoke to 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. He was put into the brake-van along with the others. Before all the wounded were picked up, Derry went back and got oil from the driver which he sent back to the brake-van where the wounded were lying. He then attended to the line.

Atindra Nath Mookerjee himself made two statements with regard 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 the explosion occurred : that it was an explosion of fireworks which were being carried in the compartment in which he was, and the effect of the explosion was that the seats and planks underneath the carriage gave way and he was thrown down senseless. He says that he did not see fireworks in the compartment and was not aware of their presence until the explosion took place. There were some 12 or 14 passengers in the compartment with him. The two statements do not agree in respect to the place in which Atindra Nath Mookerjee was at the time of the accident, and when we consider his condition at the time they were made and the extreme suddenness of the accident, very little definite information can be expected from them. In the first statement he says that he was in a compartment in front of the post-office van, in the second statement he says that the compartment in which he was traveling was behind the post office, and I am satisfied that the second statement is true. None of the witnesses who were examined at the trial can speak to the compartment where the explosion took place, but it is quite clear that when the train came to a standstill, the post-office van and the carriage to the rear of it were in flames. The front part of the post-office van, though filled with smoke, was not in a blaze at the time the train came to a standstill, nor was the rear of the 3rd class carriage immediately behind although the front part was. We have the additional fact that there was a strong nearly head wind against the train, the effect 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 explosion took place in the 3rd class compartment in the rear of the post-office van.

As to the cause of the explosion I have no doubt that it was caused by the fireworks which were carried by one or two of the passengers in 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 gass in the cylinder which exploded and caused the accident; but I believe that the explosion of the gas cylinder took place after the train came to a standstill and not before.

It was contended for the Plaintiff that the evidence showed that the communication cord was defective and had failed to sound the whistle when pulled, and that in any case steps had not been taken in the proper time to bring the train to a standstill. Now as I have already said I believe that there was a considerable delay in attracting the driver''s attention, but I do not believe the cord was defective before the explosion. It was as I have said tested and found in good order at Tundla and there is nothing to show it did not continue in good order till the explosion occurred. That the whistle was sounded by the communication cord being pulled, Mr. Gibson swears to and I believe him. He impressed me as being on the whole a careful and accurate witness. 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 the cause of the accident, no defect which could be attributed to the explosion would, I think, be sufficient to support this part of the Plaintiff''s case : but even if I am wrong on that view it does not seem to me that the Plaintiff''s case would be advanced in the least. Assuming the explosion to have taken place at gate No. 36, I think it is clear that Atindra Nath Mookerjee either fell out of or tumbled out of the train within half the distance from that gate to where the train came to a stand still, so that even if the train had been brought to a stand within half the distance in which it was, the effect so far as Atindra Nath Mookerjee is concerned would have been the same. There is no evidence before me to show that his death was due in any respect to injuries caused by his falling out of the train. It was solely due, as I gather from the evidence of the doctor, to the injuries which he received from the burning; that is to say, it was due to the injuries which he received while in the carriage at and after the explosion occurred, and so far as I can see no quickness in stopping the train could have prevented those injuries. It was also said that the brake power upon the train was insufficient.

As regards this, the evidence satisfies me that the brake power was ample for the train and that even had the train been fitted with the steam brakes, as it was contended for the Plaintiff it should have been, there would not be more than 5 or 6 seconds gain in stopping the train, and I do not think that that additional gain would have in any respect saved Atindra Nath Mookerjee from the injuries he received and which were the cause of his death. It is true that the Agent of the East Indian Railway seems to have considered it a matter of regret that the engine had not been fitted with steam brakes and that was relied on before me as an admission that the brake power was insufficient, but I am inclined to place more reliance on the evidence of the practical men who were called at the trial than to the remarks on this subject contained in the report to the directors. It was also said that the engine itself was of an obsolete type and was insufficient, but I do not think the Plaintiff has made out a case for relief on this ground. Neither do I think that the Plaintiff has made out a case on the ground that the doors on both sides of the train were locked at the time of the accident. That, I believe, was not the case. It is true the evidence shows the carriage doors were provided with catches at the bottom to prevent the doors from flying open and these catches would in the ordinary course of things be fastened, but I cannot hold that the use of these catches which were provided for the safety of the passengers is evidence of neglect or default on the part of the Railway Company, merely because they may have been the cause of retarding the escape of the passengers from the burning train.

It was also contended by the Plaintiff that great delay took place after the accident in helping the wounded and in providing the medical assistance, and it was suggested that this delay had contributed to the death of the Plaintiff''s 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, and I cannot therefore, take it into consideration.

One important matter still remains and that is as to the causes which led to the explosion. I gather from the evidence that the fireworks were taken on the train at Aligurh (which station was reached at noon on the 27th) by two passengers, father and son, named Abed Ally and Golam Hussain. It appears that between Aligurh and the scene of the accident the passengers smoked in the compartment. That seems to be in accordance with the rules of Company and the evidence seems to point to this that the smoking was in some way the cause of the explosion. Golam Hussain appears to have been killed on the spot and upon him was found a piece of paper. This piece of paper when taken from the body of Golam Hussain was given to the guard Hyrapiet and by him handed over to the police. The Railway Police Inspector who made the investigation into the cause of the accident arrived at the place where it occurred in the morning of the 28th. He says in cross-examination that he found a ticket and an order from a zemindar of Sonepat ordering the fireworks. He ascertained he does not say how, that they were what are called Sangolas, that is, bombs tied up with rope and Catherine wheels. He then says: -I don''t remember if there was anything else.

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

A.--I don''t recollect. I say a list of fireworks was obtained. 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 of the fireworks who was thrown out dead and who still held this list and a bag and this order. I did not see the dead bodies. They were disposed of before I came.

And he goes on to say that he got his information from his subordinate police-officers, Railway police, and, he thinks, from Hyrapiet, the guard of the train. In answer to further questions on this point he said that Catherine wheels vary from a foot in diameter to 6 inches, hut he did not try to ascertain what the Catherine wheels carried in the compartment were like, nor did he personally make any enquiry at Aligurh respecting them. He said inquiries were made under his orders but by whom he does not remember. Then he is asked --

Q,--Did you make any enquiries as to how these fireworks were alleged to have been carried:

A.-- Yes.

Q.--How were they carried ?

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

Q.--Did you enquire 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 or in cloth. As far as 1 can remember I could get no information as to this.

Q.--You said that they were being carried concealed. Do you say so because you could not ascertain from any body if they had seen these fireworks?

A.--I say so because even those who were in the compartment did not see the fireworks including Atindra Nath.

Farther on he is again cross examined on this point.

Did you read the list of fireworks which you say was Found

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

(To the Court)--I can''t read the vernacular in which it was written. I don''t remember to have it read to me.

Q.--Did you report that a lot of fireworks was being carried?

A.--I may have done so.

Q.--Did you report that the order giving quantity and so forth has been found?

A,--I may have done so.

Q.--What is your belief

A.--I can''t 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 fireworks mentioned in the list found were being carried, but it was afterwards found that a part of them were carried by road and those in the train were samples. 1 said a lot, my idea was--(stopped) that means a large quantity.

In re-examination he says,--

I said one of these men was the maker of the fireworks. It was from his shops the fireworks were going. The man we found on enquiry was ordered to supply them.

Then this is put to him.

Q.--There were no traces of fireworks alter the accident?

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

I think that this witness and the guard Hyrapiet were inclined when they gave their evidence to minimise the quantity of fireworks which were carried in the passenger compartment on the 27th of April. In the report which Fitzpatrick made on the 28th of April he states that it is uncertain where and how the fire commenced; that the injured persons who were then alive in hospital were too far gone in pain to give clear depositions as to where and how the fire originated. He then goes on to say:--"It is possible the post-office van was first set on lire by a naked light, carelessly thrown match, or a chilam. On the other hand the compartment in rear of the post-office van contained a lot of fireworks being carried from Aligurh to Sonepat against rule and regulation by two persons and whose names are Abed Hussain, the son of Faizbux, and Golam Hussain, the son of Abed Hussain, fireworks-rankers of Jalali, Aligurh. The order on Abed Hussain for fireworks was given by one Kedar Aly Khan of Chikari, Sonepat, and the"--(the report is here torn but I take the word to be ''list'' or ''order'')--" giving quantity and so forth has been found, but both Abed Hussain and his son are dead, BO no prosecution against them can ensue. But whether the fire in the post office set fire to the fireworks or vice versa remains to be proved by enquiry. This important point will be cleared up by the 30th when an officer''s joint enquiry will beheld.

Now it is clear from the evidence of this witness and his report that the first impression of those enquiring into the accident, was that there was a large quantity of fireworks being carried in the train that day and that impression is supported by the extent of the damage caused by the explosion. The carriage pannels were iron lined with wood and the force of the explosion was sufficient to blow out the doors of the compartment to a distance of 10 feet from both sides of the line. The compartment was completely wrecked, and Hyrapiet in his evidence gives the state of burning carriages at the time the train came to a standstill. He says in cross-examination :--" At the time when the train came to a stand no attempt was made to save the mail. We could not do anything. The fire had taken such a command over the things that we could not do anything but the whole thing was not ablaze--You could approach the two carriages at the ends--the post office at the front end and the 3rd class at the Secundrabad end." And Derry in his evidence also says that the two carriages were in flames at the time when the train came to a stand.

Now it seems to me that to do such an amount of damage in so short a time there must have been a considerable quantity of these fireworks in that compartment, and the hearsay evidence, for it seems to be nothing more upon which Fitzpatrick relies now as his reason for supposing that a part of the goods mentioned in the list had been sent by road and that only a portion had been carried in the train is not satisfactory. He suggests that they must have been concealed because Atindra Nath Mookerjee says he did not know whether the fireworks were in the carriage until he heard the explosion. But there was probably nothing to turn the attention of Atindra Nath Mookerjee to the luggage carried by any other passenger into the compartment.

The evidence as to the remains of the fireworks which were found after the accident also tend in my opinion to show that the quantity of fireworks carried in the compartment was considerable. Hyrapiet, the guard, says that he picked up four bamboo bombs which he locked up in his box, slips of bamboos which were 6 to 8 inches long, the diameter of the bamboo would be about 21/2 inches. He picked these up on the 27th and locked them up in his box. In his evidence before the joint enquiry given on the 1st of May 1896, when nothing had arisen to cause a desire to minimise the quantity, he stated this-- "I picked up on the side of the line three bamboos with holes in the centre called bombs, about 14 inches long, which had exploded and other bamboos used as torches for illuminating marriage processions all burnt. Derry in his evidence says that he picked up two or three firework bamboos about 8 inches long and 1 inch in diameter wrapped round with a peculiar twine which had exploded. He says he picked up two or three on that day and more were picked up the next morning. And in his statement before the officers'' joint enquiry he said he saw several exploded bombs picked up near the gate-house No. 36, he also picked up some himself the next 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 all those on or near the line were picked up [which is not clear, as no search seems to have been made for them], other bombs and fireworks may have exploded and been consumed within the carriage. On the whole the evidence leads me to the conclusion that a considerable quantity of fireworks was in the carriage at the time of the explosion. An expert witness, who is a pyrotechnist, was called for the purpose of shewing that a small quantity of bombs would be capable of doing the damage which was done. I do not think this expert''s evidence is very satisfactory. But even if a small quantity of bombs would be sufficient to do the damage that was done that does not necessarily give any reliable indication of the quantity of fireworks which was carried in addition to the bombs.

The question then is whether the Defendants are responsible for the fireworks having been taken into and carried in the compartment of the passenger carriage as they were on that day--a carriage in which it was the practice for the passengers to smoke and therefore to have fire or some kind or another. There can be no doubt that from the moment those fireworks were introduced into that carriage the lives of the passengers were in danger. The result of the explosion shows that from that moment the compartment became practically a powder magazine. It therefore ceased to be from that moment a vehicle fit or proper to be used for the purpose of carrying passengers The question is, are the Defendants responsible for that and to determine this question it is necessary to enquire, in the first instance, what is the duty of the Railway Company with respect to providing for the safety of their passengers ?

In the case of Christie v. Griggs. 2 Camp. Rep. 79, the facts were these. The Plaintiff was travelling to London as a passenger on a stage coach belonging to the Defendant when it broke down and he was greatly bruised. 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 the axle tree of the coach having snapped asunder, and Sir James Mansfield, in directing the jury upon the question as to the sufficiency of the coach, stated that the Defendant "did not warrant the safety of the passengers. His undertaking as to them went no further than this that, as far as human care and foresight could go, he would provide for their safe conveyance." In Readhead v. The Midland Railway Company L. R. 4 Q. B. 379, which was a similar case, the Court, while of opinion that a carrier does not warrant the safety of his passengers, laid down that the obligation to take due care should be attached to the contract between them; 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 whatever is required for the safe conveyance of their passengers is in fit and proper Order." In the case of Ford v. London and South Western Railway Company 2 F. and F. 730, the Plaintiff was injured by the tender of the train being thrown off the line, and one of the causes was alleged to be the defective tyre of one of the wheels of the tender. Erle, C. J., in his direction told the jury: "The action is grounded on negligence. Negligence is not to be 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 from the parties, considering all the circumstances. The Railway Company is bound to take reasonable care to use the best precautions in known practical use, for securing the safety of their passengers." In the case of Burns v. Cork and Boudon Railway Company 13 Ir. L. Rep., p. 543, the Court laid down the principle that it is the duty of a carrier to provide for his passengers a vehicle which shall be free from defects as far as human care and foresight can provide, and perfectly road-worthy. In the case of Hyman v. Nye 6 Q. B. D. 685, the Defendant was a jobmaster from whom the Plaintiff hired a landau for a drive from Brighton to Shoreham and back. After having driven some way, and whilst the carnage was going down hill and slowly over a newly-mended part of the road, a bolt in the underpart of the carriage broke. The splinter bar became displaced; the horses started off; the carriage was upset; the Plaintiff was thrown out and injured, and he brought an action for compensation. No fault could be imputed to the horses or to the driver. The learned Judge at the trial told the jury in substance that the Plaintiff was bound to prove that the injury which he had sustained was caused by the negligence of the Defendant, and if in their opinion the Defendant took all reasonable care to provide a fit. and proper carriage [which opinion I may point out is to be arrived at on evidence given before them because the jury can only deal with the facts which are proved at the trial] their verdict ought to be for him. Being thus directed, the jury found a verdict for the Defendant; and in particular they found that the carriage was reasonably lit for the purpose for which it is hired, and that the defect in the bolt could not have been discovered by the Defendant by ordinary care and attention. The Plaintiff obtained a rule calling upon the Defendant to shew cause why there should not be a new trial on the ground of misdirection and that the verdict was against the weight of evidence and the rule was made absolute. Mr. Justice Lindley in his judgment after referring to a number of authorities says--"A careful study of these authorities leads me to the conclusion that the learned Judge at the trial put the duty of the Defendant too low. A person who lets out carriages is not, in my opinion, responsible for all defects discoverable or not : he is not an insurer against all defects: nor is he bound to take more care than coach proprietors or railway companies who provide carriages for the public to travel in; but in my opinion, he is bound to take as much care as they; and although not an insurer against all defects he is an insurer against all defects which care and skill can guard against. His duty appears to me to be to supply a carriage as lit for the purpose for which it is hired as care and skill can render it; and if whilst the carriage is being properly used for such purpose it breaks down, it becomes incumbent on the person who has let it out to shew that the break down was in the proper sense of the word an accident not preventable by any care or skill. If he can prove this, as the Defendant did in Christie v. Griggs 2 Camp. Rep. 79, and as the Railway Company did in Readhead v. Midland Railway Co. L. R. 4 Q. B. 379, he will not be liable; but no proof short of this will exonerate him. Nor does it appear to me to be at all unreasonable to exact such vigilance from a person who makes it his business to let out carriages for hire. As between him and the hirer the risk of defects in the carriage, so far as care and skill can avoid them, ought to be thrown on the owner of the carriage.The hirer trusts him to supply a fit and proper carriage; the lender has it in his power not only to see that it is in a proper state, and to keep it so, and thus protect himself from risk; hut also to charge his customers enough to cover his expenses.

The cases which 1 have cited are en in which the dangerous condition of the vehicle was owing to a defect in some part of the vehicle itself; but it seems to me that the principles laid down in those cases are 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 dangerous substances placed therein as from a defective wheel or; or bolt, and may cease to be road worthy from the one cause as well as from the other, and if the causes owing to which in the case before me the carriage in which Atindra Nath Mookerjee was being carried by the Defendants became insecure and dangerous and unfit for the conveyance of passengers were causes which could have been prevented from becoming effective, by care and skill on the part of the I defendants then that care and that skill the Defendants were bound to exercise.

It was stated on behalf of the Defendants that they could not prevent the introduction of the fire works into the train, and the case was likened to a person entering a carriage with a box of matches or a piece of dynamite in his waist-coat pocket. But there is no evidence to show that the Defendants had taken any steps to prevent passengers from taking fire-works with them into the passenger trains and I cannot take the case before me as analogous to the case put in argument, the very statement of which shows how the explosives were concealed. There is nothing before me to show how the fire-works 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 carried against rule and regulation, or surreptitiously or clandestinely, are of no value as evidence in this case of the manner in which they were taken into the compartment, nor are the reasons given by Fitzpatrick for saying that the fire-works were concealed there. Those expressions are at the most expressions to the effect that they were being carried without the knowledge of the railway officials.

Even where it is shown that the explosives have been well concealed as in the illustration put in argument, I think it may fairly be said that, quite apart from the individual case, due care should have been taken by the Defendants to impress upon their staff the necessity of being vigilant in preventing the carriage of fire-works, and also to bring home to their passengers that such an act would be severely punished because the very fact of that having been done would, I have no doubt, tend to prevent even the secret carrying of explosives. It is not, however, necessary to pursue this hypothetical case. In the case before me I am asked to presume that the Defendants took due care to prevent the carrying of these fire-works and that the person who carried them Concealed them in such a way that they could not be discovered by the railway servants at Aligurh. I cannot presume these matters in favour of the Defendants where the circumstances are such as to call upon them to show what care and caution they in fact did take.

I was told that every man must be presumed to know the law, that it must therefore be presumed that the man who took the fireworks into the train, especially as he was a maker of fire-works, knew he was committing a penal offence, that therefore it must be presumed that he took every means to conceal his possession of these fireworks from the railway officials, and that in fact he was successful in doing so. I cannot rest the decision of a pure question of fact upon suppositions of this character. No doubt every man must be supposed to know the law, and if Gholam Hossein were being sued or prosecuted for introducing these fireworks into carriage, his plea of ignorance of the law would be no excuse for his conduct. But I think the maxim is limited to the determination of the civil or criminal liability of the person whose knowledge is in question and cannot be legitimately made use of in a case, such as the present, when the parties are entirely different and distinct from him. Even if he did know the law and knew he was committing a penal offence, there is no reason why, I should assume further that he knew he must carefully conceal these fire-works from the railway officials. He may have acted on the belief (rightly or wrongly entertained) that the railway officials would not interfere with him, and that there was no necessity to conceal the fire-works.

That the introduction of a considerable quantity of fire-works into a railway carriage is not a thing which may not be prevented by the exercise of that due care which according to the principles laid down in Readhead''s case L. R. 4 Q. B. 379 and Hyman''s case 6 Q. B. D. 685, the Defendants are bound to take is shown by the course taken by the Defendants themselves after the accident. In the seventh paragraph of Mr. Dring''s report to the agent of the East Indian Railway Company, dated the 6th of May 1896, respecting the accident and the finding of the officers'' joint enquiry he says this:-- "A notice has since been issued to the staff to exercise great care in passing the luggage of passengers and I have already received advice that in two instances passengers have been detected carrying fire-works; one case at Mogul Serai in which a Native Deputy Magistrate is said to be the offender, and a second case at Burhan." The fact that within one week two cases of the carrying of fire-works were detected after the notice was issued to the staff to exercise great care, shows that the carrying of fire-works by passengers into the compartment in which they travel, is a thing which may be prevented by the exercise of that high degree of care which the Railway Company are bound to exercise for the safety of their passengers; and if that be so, I am of opinion that where loss of life and damage has resulted from the explosion of fire-works in the compartment of a passenger carriage it should be shewn that due care was taken by the Railway Company to prevent the fire-works being carried in that manner.

The question at issue then resolves itself into this. Was there due care within the meaning of those words as defined in Readhead''s case L. R. 4 Q. B. 379 and Hyman''s case 6 Q. B. D. 685 taken by the Defendants for the purpose of preventing these two persons, Abed Hussain and Golam Hussain, from taking these fire-works into the compartment with them at Aligurh on the 27th of April 1896? Not a particle of evidence upon this part of the case has been given by the Defendants. Their contention is that they are not bound to give any such evidence and they say that it lies upon the Plaintiff to shew that they had not taken that due care and caution which they were bound to do to prevent the carrying of these explosives in the passenger''s compartment. I do not think this contention is sound. If they had, previous to this accident, issued instructions to the staff to take care and prevent the carrying of lire-works, especially during the marriage season, or if as a matter of fact any precautions were in the habit of being taken in the Aligurh Station to prevent the carrying of lire-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 which that traffic is regulated. It is therefore in my opinion the'' duty of the Defendants to produce the evidence on these matters to show that they had exercised due care and caution, and that it is not for the Plaintiff to show that they did not. In the case of Christie v. Griggs 2 Camp. Rep. 79, the Plaintiff having proved the axle tree snapped asunder at a place where there is a slight descent, from the Kennel crossing the road; that he was in consequence precipitated from the top of the coach and that the bruises he received confined him several weeks to his bed-- there rested his case. Best, Sergeant, contended strenuously that the Plaintiff was bound to proceed further and give evidence either of the driver being unskilful, or of the coach being insufficient. But it was held by Sir James Mansfield that the Plaintiff had made a prima facie case by proving his going on the coach, the accident and the damage he had suffered. That was the course taken in Readhead''s case L. R. 4 Q. B. 379 and it is the course directed by that class of cases of which Scott v. The London Dock Company 3 H. & C. 596: s. c. 34 L. J. Exch. 220 is one of the best known examples. It appears that the train was a crowded train, but it had not more than its proper complement of passengers according to the guard, and it has not been suggested that there was any crowding or confusion at Aligurh Station under cover of which the fire-works might have been introduced into the carriage notwithstanding the vigilance of the railway officials. In fact so far as the evidence before me goes, there is nothing to show that during the ten minute'' stay at Aligurh any passenger left the train, or that any entered the train except the two who carried the fire-works. There is no evidence before me to show that the Defendants took any precautions whatever which might have resulted in preventing the introduction of these fire-works into the passenger compartment at Aligurh Station on the 27th April. Mr. Dring, the Traffic Manager, who was called as a witness and who wrote the report I have above referred to as to the precautions taken after the accident occurred, was not asked a single question on this subject. I must therefore come to the conclusion that the Defendants did not exercise that high degree of care in providing for the safely of their passenger Atindra Nath Mookerjee which the law imposes upon them, and that therefore they are liable to the Plaintiff in this suit for the damages which he has sustained by the loss of his son.

With regard to the amount of damages I take the rule to be as laid down in Narayen Jetha v. The Municipal Commissioners of Bombay I. L. R. 16 Bum. 254. There the Court says :--

As regards damages, in cases of this nature, distinct evidence of the loss sustained or benefit expected is not necessary. The jury may look at all the circumstances of the case and especially at the position of the parents and age of the child, and call in aid their own experience in arriving at their conclusions." Now in this case the father has no settled income. He is about 48 years of age and suffering from paralysis. He was a schoolmaster, but owing to the disease from which he is suffering he had to give up his appointment. He also seems to have made some money by writing books but at present he derives no income from that source, and his illness has involved him in debt. He has two other children living but they are both infants and it was to his eldest son Atindra Nath Mookerjee that he seems to have looked for his main support in future. That that son would be so to the best of his ability no one knowing the customs of this country can doubt. As for Alindra Nath himself, he entered Government service in 1894. He was in temporary employment till the beginning of 1896, when he was appointed permanently as a clerk in the Arsenal at Rawal Pindi, on a salary of Rs. 25 a month. From this time onward one may, I think, consider that his future career was fairly assured. He appears to have lived at Rawal Pindi in the house of his uncle who is employed in the Commissariat Department there, and to have taken sick leave for two months in February 1896. He was on his way to rejoin his appointment when he met with the accident which resulted in his death.

In examination-in-chief the Plaintiff said that his son used to send him Rs. 20 or Rs. 22 a month. In cross-examination he said "from 1894 he went on remitting me Rs. 10-15, or 20 at a time, but after being permanent he sent me money once or twice. He sent me last Rs. 20 or Rs. 22. I cannot say when it was." Now I am satisfied that if Atindra Nath had lived, he would have been a substantial support to the Plaintiff, and looking at all the circumstances I think Rs. 1,500 would be a fair sum which the Plaintiff should receive as damages in this case. I say, which the Plaintiff should receive, because in dealing with the costs of this suit I think I am bound to see that he shall receive that sum. If I give the costs of this suit to the Plaintiff merely as between party and party, his attorney and client costs of this protracted trial would, in all probability, exhaust the larger portion of it In similar cases where 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 between attorney and client. See Sorabji Ratanji v. G. I. P. Ry. (8) and Ratanbai v. G. I. P. Railway Co. (9). I shall follow those precedents in this case. 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.