Norman Macleod, Kt., C.J.
1. The plaintiff sued the defendant railway company for the loss of six bags of sugar which were consigned from Bombay to Broach. There is no doubt that six bags out of sixteen were delivered short. The consignor plaintiff had signed the risk note in the form H so if the goods were short-delivered, he had to prove that the loss was due to wilful neglect on the part of the railway company's servants. Undoubtedly there is often a difficulty in proving wilful neglect because the only evidence of wilful neglect is the evidence which can be extracted in cross-examination from the witnesses for the defence. The guard of the train proved that the seals of the wagon were intact at Ankleshwar and also at the Narbada bridge cabin where the train stopped to let the Express pass. When he got to Broach he found the seals broken. He resealed the waggon which was taken off at Broach, but he did not make any report to the Station Master. The Judge finds on that evidence that it was an undisputed fact that the loss of sugar occurred at Broach station. Therefore the plaintiff proved by his evidence that the loss was due to the wilful noglect of the railway employees
2. It appears to me that the plaintiff could very easily have proved wilful neglect on the part of the railway employees, if there had been any, by puttting proper questions to the defendants' witnesses. The guard was not cross-examined beyond being asked whether his journal mentioned anything about a theft or robbery, and whether there was any police inquiry about the missing goods. A great deal of information might have been obtained by further questioning the guard as to the time when the train arrived at Broach, what was the position in the train of this particular wagon, how long after he arrived at Broach he inspected the wagon, and other questions of that sort which would go to elucidate the question whether the theft could possibly have been committed while the train was standing at the Broach station. It would not be likely that the theft would have occurred at the Broach station before the wagon was taken off the train. But after the wagon was taken of and stood in the goods-yard, it was quite possible that the theft might have taken place. But the evidence of theft having taken place when the wagon was in the goods-yard would depend on the evidence of the goods clerk, as his duty would be to look after the goods which would arrive from the consigning stations, and his evidence would show whether the seal was intact or whether there was any indication that the theft had been committed in the goods-yard. The goods clerk was called as a witness but he was not cross-examined at all. Therefore it may be taken that there is no evidence to show that the theft took place after the wagon was taken off the train.
3. Then all that is left is that the theft must have taken place either between the Narbada bridge cabin and the Broach station or while the wagon was in the station before it was taken to the goods-yard. It seems to me extremely unlikely that the theft could have been committed after the train reached the station as the risk of discovery would be too great. There is nothing improbable in it having taken place between the cabin and the station. For the train was detained at the cabin to allow the Express train to pass, and either while the train was standing there or while the train was approaching the Narbada bridge there would be ample opportunity for a thief to get on to it considering that it was pitch-dark night, while after crossing the bridge the train would be going very slowly before reaching the station. Therefore all these possibilities are in favour of the theft having taken place before the train got to the station, and the possibilities of the theft having taken place after the wagon was taken off the train were practically excluded by the fact that the goods clerk was not cross-examined on this point. It appears to me, therefore, that the plaintiff had failed entirely to throw the liability of the loss on the railway company by proving that it was due to wilful neglect of the railway company's servants. Strictly speaking, he would have to show that there was wilful neglect before the company would have the liability thrown on them to prove that the loss was due to a theft in the running train. I do not think, therefore, that the Judge, although he is right in his law, has properly considered the evidence before him with reference to that law. Therefore, I think, that the rule must be made absolute and the suit dismissed with costs.
4. I feel some difficulty in this case, because after all it seems to me to be a question of fact as to whether the loss was due to the wilful neglect of the railway servants, and whether under the circumstances the reasonable possibility of the loss being due to robbery from the running train is sufficiently excluded. The learned Judge has observed in his judgment with reference to the question of theft from a running train that the fact is not well established. It seems to me that this finding is rather halting. Apart from that consideration, however, it seems from his judgment that he has not appreciated the importance and the bearing of the evidence regarding the theory of robbery from the running train. There is the evidence of the goods clerk at Carnac Bunder which shows distinctly that this theory of robbery from a running train was put forward by the railway authorities. The mere fact that the telegram is not produced is not sufficient to negative the importance of that evidence. The goods clerk at the Broach station was not examined in detail by the plaintiff though he was available for cross-examination, and no facts were elicited which would show that the theory was not put forward in time or that it was not reasonable under the circumstances. The evidence of the guard also seems to suggest the same theory. Though we are slow to interfere with a finding of tact in revision, in this case, I think the finding of the lower Court that the goods were not lost in consequence of robbery from a running train is opposed entirely to the weight of the evidence, which is in favour of that theory. In this case the railway company has adduced practically all the available evidence and has made a definite suggestion supported by evidence as to robbery from the running train. I do not say that the fact is established; but the theory of wilful neglect on the part of the railway servants is sufficiently excluded. I agree, therefore, that the decree of the lower Court should be set aside and the plaintiff's suit dismissed with costs.