1. The plaintiff, Jehangir Muncherji Lali, a share and stock-broker, in the afternoon of the 4th of November 1911, purchased a second class ticket for Udwada at the Church Gate station and got into one of the defendants' trains, known as the Surat Excursion Train, which left that station at about 2-30 P. M. on that day. He formed one of a party of seven who were proceeding to Udwada for religious purposes. He got into one of the second class compartments of carriage No. 3078 and took a corner seat in that compartment with his back to the engine on the side away from the platform and next to the window opening on the side where parallel rails run and are used by trains coming up to Bombay. His train proceeded as far as the Andheri station and while it was passing that station at a fair speed, his left arm which, in his plaint he states, was out of the open window projecting not more than four inches, was injured and fractured by an open door of a stationary train on the up line of that station. He sustained serious injuries, and the train in which he was travelling was stopped by some one pulling the chain. It then proceeded as far as Borivli station where he was taken out of the train and sent back to Bombay. His friends took him to Dr. Masina's Hospital where he was treated for his injuries. The injured arm was found to be fractured and although it is now set right, there is no doubt that the plaintiff's injury was serious and he must have gone through much physical suffering and pain and lost his business for some time. In March 1912, he filed this suit claiming Rs. 30,000 as damages, which he alleges, he sustained by reason of permanent injury to his arm and the other consequences flowing from that injury which he attributes to the negligence of the defendant-Company.
2. The defendants by their written statement in the first in stance denied negligence and further pleaded that even if there was negligence on their part, they were absolved from all liability in that the defendant in projecting his arm from the carriage window was guilty of contributory negligence.
3. Some time before the suit came on for hearing, an application was made to me by the defendant-Company to try the issues of negligence and contributory negligence as preliminary issues, but the application was not entertained. Soon after my refusal to have the suit put down for the trial of preliminary issues, it appears that the legal advisers of the defendant-Company considered their position with care and on the 15th of August 1912 they wrote to the plaintiff's attorneys informing them that the Company had decided not to continue the defence of the suit on the ground that they had not been guilty of negligence, and that they accordingly withdrew their plea of non-liability for negligence as raised in para. 2 of their written statement, but would defend the suit on the plea of contributory negligence raised in para. 3 of their written statement. It seems to me that in adopting this course the defendant-Company have acted most wisely and have by their conduct in this respect saved much cost to the parties and much time of the Court. At the hearing it was agreed between counsel that the issue as to contributory negligence should be first tried. If the issue was decided against the plaintiff, the suit would be at an end. If decided in his favour, the suit would then, it was understood, proceed on the other issue as to the nature of the injuries and the quantum of damages.
4. The only question, therefore, at present before me for consideration is whether the plaintiff has been guilty of such contributory negligence as would in law deprive him of his right to recover damages from the defendants. Most of the material facts necessary for the determination of this question are facts which are either admitted or not disputed, and it is necessary here shortly to recapitulate them before discussing the question at issue between the parties.
5. It seems that before the Surat Excursion Train reached the Andheri station, it was preceded by a local train which was in charge of a guard Ardeshir Burjorji Darukhanawala. That train was running between Colaba and Andheri. It arrived at the down platform of the Andheri station at 3-28 P.M. and after discharging its passengers, it proceeded towards the Borivli side of the station, changed lines and was drawn up on the up line on the inside of the up platform and was stationary there when the Surat Excursion Train ran past it. The engine at that time had not changed ends and was on the Borivli side of the stationary train when the Surat Excursion Train went past. When this local train left Colaba, its composition consisted first of the engine, then a four-wheeled third class carriage with a brake compartment, another four-wheeled third class carriage and seven bogey carriages, the last of such bogey having a brake compartment for the guard. When after changing lines it was standing at the Andheri up platform the Surat Excursion passed the stationary local train in this order. It first passed the seven bogeys, then the four wheeled third class carriage, then another four-wheeled third class carriage with brake compartment, and lastly the engine. After the Excursion Train had gone past, it was discovered that the door on the railside of the four-wheeled third class carriage which was at the Borivli end and which counting the engine would be the third vehicle in the stationary train, was open and could not be shut, bolted or locked. A porter on duty drew the attention of the guard and the station-master to this fact. They found that the weather-frame over that door had been broken and pieces of broken wood belonging to that weather-frame were lying on the track, a little in front of the broken frame towards the Borivli side. As it was time for the local train to start again for Bombay, the door was tied up by a piece of rope, the broken pieces of the weather-frame were put in the brake, and the train left the Andheri station for its return journey to Bombay. It appears that this open door of the four-wheeled third class carriage caused injuries to three persons in the Excursion Train, one of whom was the plaintiff. The plaintiff had his arm fractured and he became unconscious for a time, the alarm signal was given, the train was brought to a stand-still, other passengers in the train rendered assistance by administering brandy and applying ice over the injured arm. The train was re-started and stopped at Borivli, when the plaintiff was taken out of the carriage and brought back to Bombay by his friends and taken to Dr. Masina's Hospital, where the injured arm was immediately attended to.
6. These are the facts about which there is absolutely no dispute. The only fact on which there was some semblance of disagreement was as to the existence of precautionary notice in the compartment in which the plaintiff travelled, and it seems to me, after having heard the evidence on both sides, that there really is no dispute on this point. There is no doubt that previous to 1910 the defendant-Company in their second and third class carriages put up a cautionary notice in four different languages, the English portion of which ran as follows:-
Passengers are cautioned against leaning out or hanging their feet out of the carriage windows while the train is in motion and also against alighting before the train stops.
7. About the end of 1910 this form of notice was discontinued and another form was printed in three languages, the English part of which ran as follows:-
Do not open the doors or put any portion of the person out of the window while the train is in motion. Do not spit in the carriage.
8. The defendant-Company contends that these notices are fixed up, protected by a glass, in a frame in all second and third class compartments of their carriages, and they maintain that the notice in the latter form, as I have set out above, was in the compartment in which the plaintiff travelled on the day of the accident. On the very elaborate evidence that the defendants have called before me, I have no doubt whatever in my mind that the precautionary notice in the form of Ex. No. 1 was fixed up in that compartment in which the plaintiff travelled on the day he sustained the injuries he complains of. The plaintiff himself is not in a position to state that the notice was not there. He is not prepared to go further than to say that he did not see it and that if it was there it did not attract his attention. I have no doubt whatever that it was there, and if the plaintiff did not see it, the defendant-Company is not responsible for that. The notice is printed in fairly large black type on white surface and is affixed to the panel of the partition immediately over the hat-rack and a man of ordinary intelligence and observant habits would have his attention attracted to it. The plaintiff is a man of intelligence and education, and, if he had cared to look, he would have found this notice in his compartment printed in three languages, with two of which he is perfectly familiar. That he did not see the notice is possible but it does not follow from that that the notice was not there. An attempt was made to show that other second class carriages had no such notices fixed up in them. I think the confusion on this point has arisen from the fact that the defendant-Company when pressed for second class accommodation, as they often are, use their first class carriages as second by putting a plate denoting that the carriage is second class instead of being the first class carriage which it really is, and as for some reason, which I cannot understand, they do not put any of these notices in their first class carriages, it is possible that when these first class carriages are used as second, no such notices are to be found therein. The Court, however, is not concerned with other carnages. What it has to find is whether a notice in the form Ex. No. 1 was in the compartment in which the plaintiff travelled on the 4th of November 1911 and on the evidence I find that such a notice was there in its usual place.
9. The Court has before it in the first place the admitted negligence of the defendant-Company in leaving one of its carriages' doors wide open on the side of its parallel lines over which another train, full of passengers, was passing at a fairly high rate of speed. The Court has also the admission of the plaintiff that his arm was extruding from the window of his carriage to the extent of not more than four inches. That admission is deliberately made in the plaint and although the learned counsel who appeared for the plaintiff tried to minimise the importance of the admission, the fact remains that the plaintiff was sitting cornerwise in his end-seat reading a newspaper with his left arm resting on the window-sill and extruding therefrom. Of course it is not possible for him to say with any exactitude how much of his arm Was out, but taking the ordinary habits of passengers, it is not unfair to him to assume that his side was flush with the panel below the window-sill which measures five inches in width and that all that portion of his arm over and above the five inches from the arm-pit must have been outside the carriage-window. It may be four inches. It may be a fraction of an inch less and it may possibly be more than four inches out of the window. It was, however, sufficiently out to enable the wide open door of one of the carriages of the stationary train to come in contact with his elbow and inflict serious injury fracturing the bone. With these two admitted facts, we have the proved fact that the defendants had put up a notice which was bound to attract the attention of a prudent and observant passenger warning him against putting any portion of his person out of the window. The defendant-Company contends that on these facts alone, and without considering anything more, I ought to hold that the plaintiff was guilty of such contributory negligence as is sufficient to disentitle him to recover any damages from them. In support of their contention both the learned counsel who appeared for the defendant-Company placed great reliance on a very elaborate and carefully considered judgment of my brother Beaman in the case of Dullabhji Sakkidas v. G.I.P. Railway Co. I.L.R. (1909) Bom. 427 : 12 Bom. L.R. 73
10. It was most insistently argued before me that the rule of law laid down there was a correct enunciation of the law on this subject and should be followed in all cases where the facts were similar. It is quite true that the facts in those two cases are very similar indeed to the facts in this case. In that judgment brother Beaman has discussed most of the leading cases on the subject of negligence and contributory negligence and the judgment is one which requires to be most carefully considered, when another Judge of the same Court is called upon to pronounce his decision in another case where the facts are most similar, if not almost identical. No one is more conscious than myself that it is desirable that there should be uniformity in judgments of the same Court as far as possible. Under the circumstances, I have most care fully read and considered the whole of this judgment, and although I am in complete accord with much that is in it, I feel constrained to say that I am unable to follow the rigid and inflexible rule of law which, the learned Judge says, must be applied without any deviation or relation in all cases of this kind.
11. The two prominent conclusions of that judgment are, first, ! that it is a rule of law that ' a passenger must travel inside and not outside his compartment and, therefore, if he does travel outside, he does so entirely at his own risk and the Company cannot be held liable for any injury he suffers in consequence ', and, secondly, that ' a passenger who gets injured owing to putting any part of his person outside his carriage is guilty of contributory negligence'. The learned Judge would not, under any circumstances, allow this rule to be varied or relaxed for he says :-' I cannot allow, if the principle is sound, that a passenger is in better case if he puts half an inch of his person only outside his carriage than if he puts a yard of himself outside'. I have gone through many of the cases relied on by the learned Judge. I have carefully considered the reasoning on which the conclusions I have referred to above are based, but I regret to say I am not able to persuade myself to come to the conclusion that any such hard and fast rule such as is laid down can be deduced from the authorities that govern the law on this subject. Even Bevan, in whose work most of these cases, and particularly the American cases, are elaborately discussed, and who seems to favour this view, does not go the length to which brother Beaman has felt . himself impelled to go. For, after discussing a case that is most favourable to the conclusions I have referred to he guards himself by saying ' The case must not be stretched to the length of inferring that in all cases a passenger thrusting his head out of the window will be disentitled to recover in the event of injury happening to him through doing so'.
12. As I have observed above, a most careful study of the judgment in question and the cases therein discussed does not carry to my mind the conviction, that when the Railway Companies contract to carry passengers they do so on the express or implied condition that no portion of a passenger's person should extrude out of the inside limits of their carriages and that even if their finger tips are out, or if any portion of their person is out by a fraction of an inch, the Railway Companies would be relieved from all liability even if the negligence on their part was most gross and culpable. I could conceive dozens of cases in which the extrusion of a portion of the passenger's person outside the carriage would be so small and the negligence of the Railway Company so gross, that no Court would refuse to grant compensation to the passenger merely on the ground that an insignificant part of his person was outside the door or the window of a Railway carriage.
13. It seems to me that by far the safest course for the Court to adopt in cases of this kind is to form in the first instance a correct idea as to what in law is considered contributory negligence, sufficient to prevent an injured plaintiff from recovering, and then to apply those principles to the facts of each particular case and ascertain whether the plaintiff is himself guilty of that negligence which in law is styled 'contributory negligence' and whether that of itself is such as would disentitle the plaintiff from recovering damages in respect of the injuries sustained by him.
14. The whole law on the subject of Negligence and Contributory Negligence is most admirably summed up in Halsbury's Laws of England, Vol. XXI, under the head of Negligence and the sub-head thereof dealing with Contributory Negligence. As a result of a very careful consideration of all the authorities on the subject, the law of Contributory Negligence is summed up at pp. 445 and 446 in the following terms ;-
In an action for injuries arising from negligence it is a defence, if the defendant proves that the plaintiff, by some negligence on his own part, directly contributed to the injury in the sense that it formed a material part of the effective cause thereof, When this is proved, the plaintiff's negligence is said to be contributory...In order that a plea of contributory negligence may be successful, it must be shown either that there was ' negligence on the part of the plaintiff which contributed to the accident and that the defendant could not, by using ordinary care, have avoided the accident, or that, notwithstanding the defendant's negligence, the. plaintiff could, by exercising ordinary care, have avoided the accident. Where, therefore, the defendant is negligent and the plaintiff is alleged to have been guilty of contributory negligence, the test to be applied is whether the defendant's negligence was the real direct and effective cause of the misfortune.
15. Taking this to be the correct enunciation of the law of contributory negligence, it is now for the Court to consider whether the action of the plaintiff in leaving a portion of his arm protruding out of the carriage-window was such contributory negligence as would preclude him from recovering damages from the defendant-Company. While declining to recognize the contention that the contractual relations between a Railway Company and its passengers impose upon a passenger an inflexible duty to keep every portion of his body within the inside limits of the compartment in which he is travelling, and assuming that the Railway Company when issuing its tickets merely contract to convey such passengers from the starting point to their destination in the ordinary way in which the general public travel in railway carriages, the questions for the Court to consider are, whether the plaintiff had a knowledge of any existing or possible danger in putting his arm out of the carriage-window, and whether, if he had not positive knowledge, the defendant-Company had done all that was reasonably possible to give to its passengers cautionary notice of the existence of such danger, and whether as a prudent and reasonable man a passenger should not have known that there was risk and danger in extruding portions of his body outside his carriage-window, and whether the fact, that the arm of the plaintiff was at the time of the accident outside of the carriage, did not form a material part of the effective cause of the accident. Having regard to the facts admitted by the plaintiff himself and the facts in regard to which there is no dispute, the decision on the question in this suit, which after all is a question of fact, presents no difficulty. I will consider these acts from the points of view that are most favourable to the plaintiffs case, because the plaintiff is an injured party and has, all throughout the hearing, commanded the sympathy of the Court. Assuming that the mere fact of his putting his arm out of the window is not an act of negligence and that he did exactly what many thousands of railway passengers in India are constantly doing, the Court has to consider the action of the plaintiff during the few moments preceding the happening of this mishap. It seems to me that the consideration of the plaintiff's conduct during those few moments has a most important bearing on the question involved in this issue.
16. The plaintiff states that he was reading the life of some statesman, who had risen from the ranks, in the Liverpool Courier. I do not know if the plaintiff takes any very keen interest in English politics or whether he has any political aspirations of his own. But he seems to have been so engrossed in the reading of that newspaper that he was completely oblivious of circumstances which, I think, a man of ordinary prudence and intelligence ought to have immediately noticed. When his train entered the Andheri station and commenced to cross the stationary train, naturally the light on his newspaper must have been considerably diminished. It is within the knowledge of us all that when two trains running on parallel lines cross each other, there is an influx of draught in the carriages, there is a great deal of noise and clatter, and the windows on the side where the trains pass each other necessarily have considerable diminution of light. When both the trains are in motion the draught of air and the noise and clatter is undoubtedly greater than when one of the trains is stationary. The ordinary instinct of passenger occupying a corner-seat, the moment he becomes conscious that another train is passing on his side of the carriage, is to draw in his arm or his head within the carriage, if before that moment he had them out of the window. It is action based on instinct of self-preservation and is dictated by an innate conviction not based on any sustained thought at the moment but based again on the instinct in a human being that when another train is running upon parallel lines, there would be danger to the part of the person of a passenger if that part is allowed to remain outside the carriage-window. If one made a careful observation of the action of passengers occupying corner-seats on the side of a parallel line, he would observe that almost invariably and without exception the passenger draws in and leans towards the inside of his compartment when another train passes his train on the parallel lines. This is the result of instinct instilled not necessarily in men gifted with any high degree of intelligence or prudence, but is the ' instinct of almost every human being who is not grossly plethoric and culpably careless. In the case of the plaintiff in this case, his action in allowing his arm to remain outside of the carriage-window till the accident happened is, to my mind, most un-understandable and I regret to have to come to the conclusion that it is indicative of gross carelessness and absolute indifference and apathy to all possibilities of danger to his person. It must be remembered that before the accident happened, the carriage in which he was travelling had crossed seven long bogey carriages of the stationary train. Each one of these carriages is about sixty-two feet long and the distances between each of these carriages taken up by the buffers must be about two or three feet. His carriage passed the stationary train to a distance of merely four hundred and fifty feet before the open door struck his elbow. The noise, the clatter, the diminution of light, the access of draught, must necessarily have conveyed to the plaintiffs mind that he was passing another train. He told the Court that, in spite of all this, he never moved from the position he had assumed, and continued to allow his arm to hang out of the carriage-window till it was struck by the swinging open door of the other train.
17. Under these circumstances, can the Court come to any other conclusion but that the plaintiff was most grossly careless and indifferent to danger It is not possible to conceive that after his train entered the Andheri Station, he did not realize that he was passing another train. That he should have continued to keep his arm hanging out of the window is a very clear and unmistakable indication of indifference and carelessness about his personal safety. A man possessed of the most ordinary prudence and of intelligence, not necessarily of a high order, would have immediately withdrawn his arm as soon as he found that he was passing another train on an adjacent line. It is true that in the first instance the Railway Company was guilty of an act of negligence. The door was left open and was swinging about. It was not possible for them to have done anything to avoid the accident to the plaintiff or to avert the consequences of their negligence. None of its servants was cognizant of the fact that the door was left open. In all probability when the train was shunted the door was closed but was not either bolted or locked and the draught created by the passing train may have forced it wide open. The evidence in the case shows conclusively that the defendant-Company in constructing their carriages have been well within the Government maximum standard dimensions as to the width of their carriages. It also shows that the rails are so laid as not in any way to infringe the Government Regulations as to the standard minimum distances between the two parallel lines. The evidence, however, shows that nothing would have happened to the plaintiff if his arm had been either inside the carriage or even on the window-sill, if it had not extruded beyond the limits of that sill. The door was an inanimate object and once left open it was a source of danger to passengers in passing trains if any part of their body came in contact with it. The plaintiff had the last chance of avoiding the accident. Although he might have been justified in travelling with his arm outside the window when on the open track, when he entered the railway station and when he found, as he must have found, that he was passing another train on adjacent lines, he ought, as a man of ordinary prudence, to have drawn in his arm. He had in that compartment a notice warning him against putting any portion of his body outside the carriage. He had ample time while he was passing seven successive long bogeys to realize that his arm ought not to be out. His conduct in leaving it out was distinguished by callous indifference to danger which in his case seems to me, as I have observed, above un-understandable. It cannot possibly be said that it was not such negligence on his part as directly contributed to the injury. I am constrained to hold that in leaving his arm out while passing the stationary train and continuing to allow it to hang out of the window during the whole time that he passed seven bogey carriages until he came to the eighth carriage from the door of which he received the injuries he complains of, he was guilty of negligence which directly contributed to the injury and that such negligence formed a material part of the effective cause thereof.
18. In The Bernina (1887) L.R. 12. P. D. 58, Lord Justice Lindley, in the course of his judgment, at p. 88, makes the following observations :-
Tuff v. Wannan (1858) 5 C.B. (573) in the Exchequer Chamber, and Radley v. London and North Western Railway Company (1876) AC 754 in the House of Lords, show the true grounds on which a person himself guilty of negligence is unable to maintain an action against another for an injury occasioned by the combined negligence of both. If the proximate cause of the injury is the negligence of the plaintiff as well as that of the defendant, the plaintiff cannot recover anything. The reason for this is not easily discoverable. But I take it to be settled that an action at common law by A against B for injury directly caused to A by the want of care of A and B, will not lie. As Pollock Chief Baron pointed out in Greenland v. Chaplin (1850) 5 ER 248 the Jury cannot take the consequences and divide them in proportion according to the negligence of the one or the other party.
19. After a little further discussion, Lord Justice Lindley, in referring to cases where both parties are guilty of negligence, goes on to observe :-
Why in such a case the damages should not be apportioned I do not profess to understand. However, as already stated, the law on the point is settled and not open to judicial discussion.
20. Taking this to be the settled law, I must hold that in this case on the proved and admitted facts, the plaintiff was guilty of contributory negligence and is not entitled to recover damages from the defendant-Company.
21. I must find the first issue in favour of the defendants. It must not be taken that my finding is in exact accord with the wording of that issue. I have attempted to set out in my judgment the exact nature of that portion of the plaintiffs conduct preceding the accident which I hold to be negligence on his part, and it by no means follows that the injury caused to the plaintiff was directly the result of his negligence or the result of his negligence alone. It was the result of the combined negligence of the plaintiff and the defendants. It follows, therefore, that the plaintiff's suit must be dismissed.
22. I have come to this conclusion with much regret. It is not for me to comment on the extreme want of generosity on the part of the defendant-Company in dealing with people who suffer undoubted injuries, the primary cause of which is their negligence. They are entitled to stand upon their rights and to have cases decided in strict conformity with the law. This, however, is undoubtedly one of those cases where costs ought not and will not follow the result. The plaintiff has undoubtedly suffered grievous harm to his person. He must have gone through much mental distress and bodily pains during the time he was confined to the Hospital and during his convalescence. He must have incurred large expenses in having his arm set right. It is possible that some permanent defect may remain behind for some time. He has placed his case before the Court with much candour and truthfulness. He must have expended a substantial sum of money in the conduct of the case before the Court. This is a case of grievous hardship to him and under the circumstances, although the Railway Company has . met the plaintiff in a spirit of great fairness so far as the conduct of this case is concerned and although its servants were most attentive and considerate to the plaintiff when he sustained the injuries, I do not think this is a case in which the defendants ought to have their costs of the suit from the plaintiff. Both parties were guilty of negligence, the combined action of both caused the accident. The defendant-Company has sustained no loss or damage as the result of the negligence on the part of the plaintiff, whereas the plaintiff has undoubtedly sustained damage as the result of the defendant's negligence and under the circumstances, I think it would be no hardship on the defendant-Company, even though it wins this case, to leave it to bear its own costs.
23. The suit will stand dismissed, each party bearing its own costs.