Norman Macleod, Kt., C.J.
1. The plaintiff's sued the South Indian Railway Company and G.I.P. Railway Company for damages in respect of short delivery of certain tins of oil which were delivered to the South Indian Railway Company, at Erode Railway Station for carriage to Baroda. When the train arrived at Kalyan, it was found that the waggon which contained the plaintiffs' goods was open and seventeen tins were missing. The plaintiffs signed the Risk Note B, and in order to recover the plaintiffs had to prove that the loss was due to theft by or to the wilful neglect of the company's servants, transport agents or carriers employed by them before, during and after transit over the said railway or other railway lines working in connection therewith or by any other transport agency or agencies employed by them respectively for the carriage of the whole or any part of the said consignment: provided that the term 'wilful neglect' could not be held to include fire, robbery from a running train or any other unforeseen event or accident.
2. The learned Judge came to the conclusion that the theft was not committed in a running train, although he does not deal in detail with the evidence given by the witnesses with regard to the arrival of the train at Kalyan. The theft was discovered when the waggons were examined within a few minutes of their arrival at Kalyan, and if the theft was not committed in the running train, it would appear it must have been committed within a few minutes of the train's arrival at Kalyan. That would be a conclusion which it would be rather difficult to arrive at. However that may be, the onus lies upon the plaintiffs to prove that loss was due to theft by or to the wilful neglect of the company's servants, and they called no evidence to prove that It is true that there is the evidence of the company's servants, but in our opinion there is nothing in the evidence of the company's servants which would entitle the Court to come to the conclusion that the loss was due to theft committed by one of them or to any wilful neglect on their part.
3. The liability of railway companies under Risk Notes of thin character, and the question what it is incumbent on the plaintiffs to prove was considered recently in H.G. Smith, Ld. v. G.W.R. Co.  1 A.C. 178. Lord Buckmaster said, after reading out the clause in the agreement which provided that the company should not be liable for the loss of the goods except upon proof that the loss arose from the wilful misconduct of the company's servants (pp. 182, 183):
The first question to determine is what is the true meaning of that condition? It has been suggested on the part of the appellant that it must be read as though it contained exceptions in favour of the railway company with a proviso reserving to the consignor rights in a certain event, and that it was consequently incumbent upon them to prove that the goods had disappeared owing to the specified facts, and when that was proved it would become necessary for the consignor to establish that he had the benefit of the proviso, or, in other words, that the loss had arisen owing to the wilful misconduct of the company's servants.
I am unable so to regard this clause; it is in my opinion a clause which throws upon the trader, before he can recover for any of the goods, the burden of proving in the first instance that the loss sustained arose from the wilful misconduct of the company's servants. It is perfectly true that this results in holding that the apparent protection afforded to the trader is really illusory; it practically gives him no protection at all, for it is often impossible for a trader to know what it is that has caused the loss of his goods between the time when he delivered them into the hands of the railway company's servants and the time when they ought to have been delivered at the other end of the journey. The explanation of the loss is often within the exclusive knowledge of the railway company, and for the trader to be compelled to prove that it was due to wilful misconduct on the part of the railway company's servants, is to call upon him to establish something which it may be almost impossible for him to prove. None the less, that is the burden that he has undertaken, and the question is whether in this case he has afforded any evidence which calls for an answer on the part of the railway company. All he has been able to show is this : he has proved the delivery of the goods in the manner that I have mentioned to the railway company's servants, and he has put in evidence a correspondence between himself and the railway company, and their answers to certain interrogatories. I am bound to say that the correspondence does not reflect very creditably upon the attitude which the railway company adopted, and certainly does not show any anxiety on their part to satisfy one of their customers as to such of their circumstances as were within their knowledge, associated with the loss of these goods.
4. It appears, therefore, that although it may be said that in equity the railway company ought to give such information to their customers as is in their possession with regard to the loss of goods delivered to them, it is not incumbent under the law upon them to do, and they are not obliged to go out of their way to assist a plaintiff in proving wilful neglect. But as there are no rules of procedure enabling a party to administer interrogatories in a Small Cause Court suit we still think that in this country a railway company should produce before the Court for examination those of their servants who were in a position to be acquainted with the facts relating to the disappearance of their customer's goods. The G.I.P. Railway Company have done so in this case, and in our opinion very rightly, but the learned Judge considered that their long continued failure to give any explanation as to what had happened to the seventeen tins short delivered, coupled with the want of explanation to account for the delay, afforded evidence upon which it could be found that the short delivery was due to wilful misconduct of the company's servants. That is a conclusion which can no longer be warranted under the decision to which we have just referred. Therefore the rule must be made absolute and the suit dismissed with costs.