1. After setting out the rival contentions of the parties the judgment proceeded : For the purposes of this case there are two alternatives. Either the person who placed the ladder in the rack was in defendants' employ, or he was not. la it possible in the circumstances to say that one hypothesis is more likely than the other? I am satisfied on the evidence of the Carriage Inspector Cantervischer that these ladders are intended to be kept under the berths. That is consonant with common sense, No responsible person would place an article of that kind in a rack such as we have here. I am also satisfied that the Company's servants would ordinarily remove a ladder from the rack if they found it there. It is possible that they might place it there temporarily while sweeping or washing the carriage, and that it might escape notice. On the other hand the train stands at the passenger platform for an hour and a half before it starts and any passenger can enter a compartment. Luggage i brought in by all kinds of people, passengers, their servants or the coolies employed by them, and a ladder under a berth is no doubt frequently much in the way when luggage has to be disposed of. I do not think I am bound to affect 'a cloistered seclusion' about these matters. Everyone who travels on Indian railways knows quite well that these ladders are frequently placed by passengers or their servants, in the lavatories or on unoccupied berths in order to make room for luggage. In the present case it is impossible to exclude the possibility that some passenger entered the carriage and placed the ladder in the rack, and then transferred himself to another compartment on finding that the lower berths were occupied, or because he decided to join a friend elsewhere. Such things often happen.
2. In my opinion no analysis of the evidence can carry the matter further and I am unable to say that of the two hypotheses which I have propounded one is more likely than the other-This being so can it be said that negligence on the part of the defendants is made out? Clearly not: and unless the burden lies on the defendants to disprove negligence plaintiff must fail. It is no doubt urged that defendants were in any case negligent in allowing the train to start with the ladder in the rack. I will deal with that point later.
3. A considerable number of cases have been cited and to these I have referred, and to other cases also where the question of negligence has been discussed. Reference has also been made to Beven's work on Negligence, 3rd Edition, and to the article on 'Negligence' in Halsbury's Laws of England, Volume XXI, para 751. The question resolves itself into this-is this a case where the doctrine res ipsa loquitur is applicable? In other words, 'do the facts speak for themselves' that is to say, can negligence be inferred from the fact of the accident? Upon this point Blackburn J. in Scott v. London Dock Co. (1865) 3 H. & C. 596 remarked: 'The question depends on the nature and character of the accident. 'Now it is impossible to find two cases which are identical in point of fact-none at least has been discovered in which the facts are identical with those before me, Many of them are complicated by a consideration whether a case ought or ought not to be left to a jury, and it is mainly with reference to this question that the maxim res ipsa loquitur is important. The question 'can negligence be inferred?'is for the Judge. The question 'ought negligence to be inferred?'is for the jury (see Metropolitan Railway Co. v. Jackson (1877) 3 AC. 193 or as is said in Pollock on Torts (11th Edition, p. 453, footnote): 'Strictly the jurors have to say not whether negligence ought to be inferred, but whether, as reasonable men, they do infer it. 'Here both questions are for the Judge. Can negligence be inferred from the nature and character of this accident and would a reasonable man infer it. Practically no advantage is gained by separating the two questions.
4. Generally speaking, therefore, the reported cases are not of much assistance but there is one principle which may be stated:
In some cases res ipsa loquitur, the accident may be of such a nature as that negligence may be presumed from the mere occurrence of it. But when the balance is even, the onus is on the party who relies on the negligence of the other to turn the scale.
5. This statement of the law is cited by Beven as a correct ex-position (see p. 126, footnote 2) and indeed it appears to be so. Here is an accident. There are two hypotheses on which it can be explained. On the one defendant is liable: on the other he is not. Is it not clear that if, as here, the balance is even plaintiff must fail in the absence of affirmative proof of negligence : see Cotton v. Wood (1860) 8 C.B.N.S. 568. Lord Halsbury's maxim applies ei qui affirmat, non ei qui negat, incumbi probatio. An illustration of the application of this maxim to a case where the cause of an accident was unknown will be found in the judgment of the Judicial Committee of the Privy Council in the McKensie v. Chilliwack Corporation.  A.C. 888.
6. It must be pointed out here that this is not one of that class of cases where injury is caused by a thing which was exclusively in the defendants' or their servants' control. Here, as has been said, other persons can and constantly do move these ladders in railway compartments. Therefore all those cases which turn on that peculiar state of facts are here inapplicable.
7. In East Indian Railway Co. v. Kalidas Mukerji I.L.R. (1901) Cal. 401 : 3 Bom. L.R.293 p.c the essential facts are not dissimilar to those which we have here. The accident was caused by an explosion of some fire-works which were introduced into the compartment without the knowledge of the defendant Company's servants. There was a duty to prevent dangerous goods being carried. Here there was a duty to prevent dangerous articles being placed where they might fall upon passengers. But in that case their Lordships of the Privy Council say that it was not incumbent on the railway company to prove that they did not know the nature of the goods. Is it incumbent on them to prove that they did not know that the ladder was in the rack when the train started? I think not.
8. This brings me to the second ground on which it is suggested that defendants are guilty of negligence-that is to say, that it was their duty to see that there was no dangerous article in the rack when the train started. The case last cited is instructive as to the duty of a railway company towards its passengers. The duty is to exercise due care and skill in carrying passengers, or as Blackburn J. says: 'A railway company are not bound to carry passengers safely and securely, at all events, but to take all reasonable care that in the management of their trains the passenger is not exposed to undue danger:'' Gee v. Metropolitan Ry. Co. (1873) 42 L.J.Q.B. 105 Now the precautions taken by the company, as explained by Cantervischer whose evidence was given in a fair and straightforward manner, are as follows. The main line trains are inspected on arrival the day before. They are again inspected when they are made up shortly before the train is brought into the passenger platform, and any ladders which are found in the rack or elsewhere are removed, and restored to their proper place under the centre berth. This is, I think, reasonable care. It can hardly be expected that the defendant company should employ a kind of patrol to see that no dangerous articles are placed in the rack before the train starts. Indeed in this case it would be difficult to exclude the hypothesis that the ladder was placed in the rack after the train started. It is not my experience that passengers observe minutely all that passes in a fairly full compartment. And it would be hardly in accordance with human nature to expect that any one would admit that he placed the ladder in the rack.
9. The result, if I am right, must be that plaintiff's claim must fail whatever sympathy may be felt for him. As, however, the evidence has been fully recorded I propose to record my findings on the remaining issues also.
10. I may be wrong, but I find it difficult to treat the plea of contributory negligence seriously. It really comes to this that a party who lies down in a berth in a railway carriage is bound to make a minute examination of that which is over his head, and if he detects any object above him to assure himself that it is securely fastened in the place where it happens to be. The evidence of the plaintiff, his appearance, his actions left no doubt on my mind that he is, as he says, almost blind. But apart from that where is the contributory negligence? Even defendants' witness Delany never saw that the ladder was in the rack. The plea requires no further examination.
11. There remains one point only and that is the question of damages. As in the case of Sorabji H. Batlivala v. Jamshedji M. Wadia : AIR1914Bom218 there are three items to be considered, (1) Ex.-penses (2) Pain and suffering (3) Loss of income.
12. On the first head plaintiff claims Rs. 200 and though there is no satisfactory evidence of the exact amount the sum might be accepted as reasonable. On the second head the amount claimed is Rs. 25,000 which is beyond reason. Plaintiff's witness Dr. Sathe says there was a cut on plaintiff's forehead 1 inch (long) inch(deep) one-eighth inch (wide) and form day and a half there were signs of concussion. I fear that plaintiff's own account of his sufferings is grossly exaggerated. In the case I have cited Rs. 10,000 was allowed and the most cursory perusal of the report shows how very desperate were the plaintiff's injuries in that case. Rs. 1000 would be a very liberal allowance under this head. As to the third head, loss of income, the total claimed is Rs. 29,800 in two items. Judging from Dr. Sathe's evidence it might be fair to allow three months' income. There is no satisfactory proof of any permanent injury. It appears that there was a considerable falling off in the number of students in the institution which may be ascribed to plaintiff's illness. No accurate estimate is possible. As to the amount of plaintiff's income his evidence is not borne out by the accounts which he has produced. And his prospective estimate of what he might have made at Indore is pure guess work.
13. Plaintiff's net income for the first eleven months of 1920 is shown in the statement prepared by defendants' witness. It has not been criticized in any way. In round figures the total is Rs. 15,000, or say Rs. 16,500 for the year. There is no doubt something to be added from the sale of books. In view of the marked rise in plaintiff's earnings it would not be unreasonable to estimate that he would have made a profit of Rs. 20,000 in 1921, On that basis plaintiff's loss of income for three months may be estimated at Ks. 5,000. The total damages, were defendants held to be liable, I should estimate at Rs. 6,200.
14. Suit dismissed with costs, including costs reserved if any.