1. About 18-20 on Friday the 4th March last the Special Weekly Postal Express from Bombay to Madras left the main line which is a single line at the points on the Bombay side of the Bhalvani Station, ran on to a loop line and collided with a goods train on that loop line. Had the main line points been properly set and locked this could not have happened; but they were not properly set and locked; they were set so as to take any train coming from the Bombay direction on to the loop line though they ought to have been set so as to keep it on the main line. All this is admitted. The mistake happened in this way. The goods train came into Bhalvani about 17-50, proceeding towards Bombay and took up a position on the loop line. Shortly after it arrived a down mixed train, that is a train coming from the direction of Bombay came in. For this train the points were correctly set; so it kept on the main line and passed into the station. At this time a muccadum was in charge of the points. After the mixed train had passed, the muccadum. being under the impression that the goods train would then pass out going towards Bombay, set the points accordingly. The result was that the goods train could have passed out on to the main line and proceeded towards Bombay; but also that any train coming from Bombay must necessarily leave the main line at the points and run on to the loop line where the goods train was, The goods train did not leave, as it was known that the Postal Express would presently arrive; but the points were not altered, the Postal Express arrived and the collision happened.
2. Primarily, the Station Master was responsible; but it is said ,and it seems to me rightly so, that the guard of the goods train was responsible for the safety of his own train; it is also alleged that had he, as it is said he was bound by the rules to do, seen that the main line points were properly set the collision could not have happened. In respect of his neglect of duty the guard of the goods train was charged by the First Class Magistrate at Sholapur as follows:-
That you on or about the fourth day of March 1910 at Bhalvani, being a Railway servant, endangered the safety of persons travelling in the down Postal Express by disobeying the Order No. VII Rules i and iii set out in the Working Time-Table, Part ii, by not going to the facing points to see that they were so set as to insure the safety of the up goods train in your charge then standing in the siding at Bhalvani Station waiting for the down Postal Express to pass and waiting at the points till the said Express had passed with the result that the points being incorrectly set the Express collided with the said goods train in your charge, and several persons in the Express were injured thereby and further that the said facts disclose a negligent omission on your part: the above mentioned rule not being inconsistent with the General Rules published under the Railways Act and which you were bound by-the terms of your employment to obey and of which you had notice; and thereby committed an offence punishable under section 101 (b) and (c) of the Railways Act and within my cognizance.
3. The Magistrate has written a very clear and careful judgment; has found the guard guilty and has imposed a nominal punishment. Against the conviction the guard has appealed to this Court, as, being a European British Subject, he has a right to do. The District Magistrate has also referred the case to us for the purpose of enhancing the sentence.
4. The duty, which it is said the guard of the goods train failed to perform, is imposed by Order VII in the G. I. P. Railway Working Time Table, Part II. The rules in Order VII are not made under section 47 of the Indian Railways Act: nevertheless they are absolutely within the power of the G. I. P. Railway Company to impose, so long as they are not inconsistent with the Railways Act or with the General Rules made under that Act. The rules in Order VII are, it is true, merely administrative orders or executive directions; nevertheless, the Company's servants are bound to obey them. The guard of the goods train was bound by the terms of his employment to obey them and he had notice of them.
5. There is no inconsistency whatever so far as I can see between the rules in Order VII and the Railways Act or the General Rules made under that Act.
6. On all these matters the Magistrate has arrived at a correct conclusion and has given good reasons for so doing. I think also that he is right in his appreciation of the evidence.
7. In this otherwise deplorable case, it is satisfactory to find that the Magistrate was rightly able to describe the accused's statement as frank. He may not have accurately remembered what passed between him and the Station Master; but substantially, to the best of his recollection he has told the truth. He, in his statement, has not put forward idle excuses. It would have been better, had his Counsel followed his example.
8. It is perfectly clear that the main line points were not correctly set. It is equally clear that the guard thought that it was his duty to see that they were properly set. It is also clear that the guard had ample opportunity to reach the main line points. He knew that the Postal Express would presently arrive; but so far as he knew, there was ample time for him to do other things before it would be necessary for him to go to the points. He also knew that if the Station staff did their duty he would in some way receive further warning before he need go to the points. So he joined the driver of his train and had tea with him. In so doing he ran the risk, should others fail to do their duty, of being too late to reach the main line points in time to see that they were correctly set. But what ought to have happened and what in the ordinary course of things would happen did not happen. The guard received no further warning and the Postal Express came in sight whilst he was still with the driver on the engine. He then did what was possible but that did not enable him to avert a collision. Had he simply done what he believed to be his duty independently of the Station staff he could have averted the accident. Therefore it seems to me that if it was his duty to go to the main line points he failed to do it, and failed where he might and ought to have fulfilled it.
9. It is of vital importance that the guard should perform his duty, though the members of the Station staff fail to do theirs. By that means are accidents averted.
10. It would be unnecessary to say more were it clear that the duty imposed on the guard of the goods train was, as has been assumed, a duty to see the main line points properly set. The duty is founded on the rules in Order VII and on no other rules or instructions. But in a case like the present the rules in Order VII do not impose any duty at all on the guard of the goods train with reference to the main line points. The duty is thus described in Rule I :-' To see the pair of points facing to the approaching train which lead into the line occupied by his train are so set and locked that a collision between the approaching train and his own is impossible '. The object of the rule is that the guard is to prevent a collision with his train, in other words he is to secure the safety of his own train; and is to do it by seeing to the particular pair of points which lead into the line occupied by his train. Generally speaking, that would be the nearest pair of points, not a remoter pair. In this particular case it would be points No. 3 on the plan produced in appeal and admitted to be correct. If greater clearness be necessary as to the meaning of Rule I, it is obtained by studying the illustrations given in Rule 2. In each case the guard is responsible for the pair of points immediately leading to the line occupied by his train and for no other points.
11. Therefore the rules under Order No. VII in this particular case did not impose on the guard any obligation whatever to see to the main line points. But the case throughout proceeded, the evidence was led, and the accused defended himself, on the assumption that his duty was to see to the main line points; and he has been convicted because he failed to perform that imaginary duty. The conviction is based exclusively on the failure to obey the rules in this particular; therefore the conviction must fail because no such duty was imposed by the rules. He cannot in this trial be convicted because of failure to obey the rules in another particular; because he was not called on to defend himself as to that and we do not know what his defence may be, or what the effect of the evidence if taken as to that matter would be.
12. It is a remarkable thing that apparently everyone concerned, including the guard himself, supposed that the rules imposed a duty which as a fact they do not impose. There may be many cases in which the points immediately leading to a siding or loop line are the main line points and in such cases the guard 'would under the rules be bound to look to the main line points: but that is not the case here.
13. The appellant is acquitted and it is ordered that the fine, if paid, be refunded.