Basil Scott, Kt., C.J.
1. The plaintiffs sue to recover from the defendants the sum of Rs. 10488-8-0 with interest at 9 per cent, from the 17th April 1909 as the price of 90 bales of cotton consigned at Malkapur on the 3rd of March 1909 by the second defendants for delivery by the defendants to the 1st plaintiff in Bombay.
2. The cotton was not delivered and on the 17th of April 1909 the plaintiffs were informed by the defendants that it had been burnt at Varangaum Station. Thirty-seven damaged bales ^ere subsequently sold and realised Rs. 3210 which sum has been paid to the plaintiffs.
3. The undisputed facts are that the 90 bales were placed by the defendants in waggon No. 15646 at Malkapui together with 19 bales of cotton belonging to another consignor between 5 and 7 p. m. on the 3rd of March. The doors of the waggon were then closed and sealed and the waggon was shunted to the dead end of a siding till next day On the 4th March the waggon was attached to a train which left Malkapur at 1-50 P. M. the waggon being then next to the engine. It arrived at Bodwad Station at 2-33 p. m. where five other vehicles and an incline brake were introduced between the engine and the waggon in question. At 3-40 P. M. on approaching Varangaum station smoke was seen issuing from the waggon. At that station the waggon was detached and put on a siding, the doors were opened, the cotton was found to be on fire, 39 bales were with difficulty extracted, the engine driver tried unsuccessfully to extinguish the lire by water from his engine and after thirty minutes detention having no more water to spare in his engine went on with the train to Bhusaval 8 miles distant. The bales remaining in the waggor continued burning for some hours till they were completely destroyed. At 4-10 p. m. the Station Master of Varangaure telegraphed to the Station Master at Bhusaval to arrange to send a fire pipe to put out fire of waggon 15646 and the bales in which were burning very badly. This message was received at Bhusaval at 4-30 p. m. Some hours later the Varangaum Station Master wired to Bhusawal, ' Fire pump not sent yet, half the bales burnt, strong wind blowing, fire in great force, arrange sharp '. This message was received at Bhusawal at 8-30 p. m. No assistance of any kind) was, however, sent from Bhusawal.
4. The defendants admit that their responsibility for the loss, destruction or deterioration, of goods delivered to them to be carried by railway is, as provided by Section 72 of the Railways Act IX of 1890, that of abailee under Sections 151, 152 and 161 of the Contract Act, that is to say the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would under similar circumstances take of his own goods of the same bulk, quality and value as the goods bailed, but in the absence of special contract is not responsible for the loss, destruction or deterioration of the thing bailed if he has taken the amount of care above described; if, however, by his fault the goods are not delivered at the proper time the bailee is responsible of any loss, destruction or deterioration from that time. ^
5. For the plaintiffs it was contended not only that the defendants must show that they took ordinary and reasonable care of the goods but that the loss occurred from a cause which could not be attributed to the negligence of their servants and it was argued that loss from an unknown cause of goods in the charge of the defendants was presumptive proof of their negligence. This argument was based upon the supposed similarity of Section 76 of the-Railways Act to Section 9 of the Carriers Act, 1865, the effect of which was said by Mr. Justice Macpherson in the case of Choutmull Doogur v. Rivers Steam Navigation Company ILR (1897) Cal. 786 to be 'to make the loss of the goods evidence of negligence which the carrier must displace.'
6. I doubt whether it was intended by that section to do more than give effect to the English rule that where the declaration stated the breach of duty of the carrier to deliver it was not necessary to prove negligence also even though negligence was alleged-see Richards v. L. & S.C. Railway Co. (1849) 13 Jur. 986-- the reason being that the carrier was always liable for non-delivery unless he could bring the case within one of the exceptions recognized by the Common Law or established by special contract or within the limits permitted by the Legislature. Section 76 of the Railways Act is not by any means the same in terms as Section 9 of the Carriers Act.. It may have been enacted to make it clear that a suit against a railway company was to be regarded as an action for breach of contract and not an action in case, a question which had been much discussed in England: see Tattan v. The Great Western Railway Company (1860) 29 L.J. Q.B. 184 Morgan v. Ravey (1861) 30 L.J. Ex. 131, and Baylis v. Lintott (1873) L.R. 8 C.P. 345.
7. In my opinion this section does not increase the onus of proof laid upon the defendants by Section 151 of the Contract Act.
8. It is contended for the plaintiffs that the evidence establishes that the fire which destroyed the cotton originated in some preventable cause, that it could not have originated from spontaneous combustion, and That he loss would have been much less but for the negligence of the defendants' servants.
9. The suggestions of the defendants as to the possible cause of the fire are, that it may have been due to careless bidi smoking by the defendants' coolies when loading the cotton or to the careless use of matches by the same coolies, but that most probably it was due to sparks from the engine igniting the '.on while the train was in motion. Evidence has also been given as to the possibility of the fire being caused by sparks emitted by friction of the iron bands on the bales or by spontaneous combustion.
10. I will not discuss these questions in detail because I am satisfied that they have been fully and adequately dealt with in the judgment of the lower Court and I agree in the conclusion arrived at therein that the defendants have successfully shown that they took all reasonable precautions to obviate preventable risks. I do not think the possibility of sparks from friction of the bale bands could have been obviated by any reasonable precautions and I am not so convinced as the trying Judge of the. remoteness of the possibility of spontaneous combustion. If the two last-mentioned causes are so unlikely I fail to see how the frequent fires in closed iron waggons can be accounted for. These frequent fires are of great importance also in rebutting the suggestion that the plaintiffs' cotton must have been ignited by sparks entering through the apertures between the corrugations of the waggon roof.
11. The question remains whether the defendants discharged their duty as bailees after the fire had been discovered. Their ' obligation included not only the duty of taking all reasonable precautions to obviate these risks, but the duty of taking all proper measures for the protection of the goods when such risks ... had actually occurred ': see Brabant & Co. v. King (1895) A.C. 632 .
12. Millard, the driver, says that when the fire was discovered there was no other course but to run into Varangaum station and detach the waggon. The danger of taking on the waggon to Bhusawal has been explained to be the possibility of distortion of the shape of the iron waggon by the fire causing a derailment, and on the evidence I think it was prudent to detach the waggon at Varangaum. It was also reasonable* to shunt the waggon on to the nearest siding. It was reasonable to open the doors to try and turn the cotton out on to the platform. It was reasonable in the first instance to try to extinguish the fire by water from the engine. When no more of the engine water was available and the driver had only enough left to take his train into Bhusawal, the Station Master tried to render the water of the nearest well available by wiring to Bhusawal for a ' fire pipe' which he says means a pump -for taking out water. He sent this message at 4-10 1. e. approximately at the time the train left Varangaum for Bhusawal and it d not appear to me that the evidence establishes up to this file any negligence or breach of duty on the part of the defendent or their servants. It is from this point that the inaction of the defendants' servants is open to criticism. Bhusawal is a large junction 8 miles distant from Varangaum. The Bhusawal Station Master says that throughout the day there are duplicate engines with steam up there, and that he had a hose 250 feet in length which he could have sent to Varangaum. The Traffic Manager, Mr. Rumboll, says the defendants keep an efficient fire hose and hand power pump fire engine at Bhusawal and that the assumption is that the pump is capable of sucking for the length of the hose taking into consideration the depth of the well. It may be assumed therefore that at 4-30 the time when the Varangaum Station Master's message was received there was a duplicate engine under steam which could have at once conveyed the hand fire engine with 250 feet of hose to Varangaum in 20 minutes. What did the Station Master do 1 He did nothing. His evidence is that the wire was brought to him by the signaller, on which he went to the telegraph and called up the Varangaum Station Master, by what is known as a practice message, and asked if there was any water at Varangaum j a reply was received that there was a well about 250 yards from the waggon and that the water was 50 or 40 feet from the surface, he then wired that it was useless to send the fire engine down as it would not draw the water at that depth. The first time this practice message was mentioned in connection with the case was in the answers to interrogatories on the 27th January 1910 when the Deputy Traffic Manager deposed that he was informed by the Station Master-Bhusawal that he received the first telegram from Varangaum about 17 o'clock i. e. 5 p. m. and thereupon communicated by telegraph with the Station Master at Varangaum and ascertained that the nearest well was about 200 yards from the waggon and that the water was 25 feet from the surface. It is to be noted that the distance of the well and the depth of the water had increased in the recollection of the Bhusawal Station Master by the time he gave his evidence. The Varangaum Station Master was not asked in examination-in-chief as to any such communication but in cross-examination said that between telegrams 34 and 35, which was sent 4 hours later, the Bhusawal Station Master asked him by practice message whether he had water at his place. In re-examination the not was left untouched but in answer to the Court the witness lid: 'I sent practice messages on the day of the fire between 6 P. M. and of r.m. at night. First 1 sent a practice message to Bhusawal. I don't remember the time. I said, are you making any arrangements about water I can't give any idea what time that was. Then Bhusawal asked me how far off the water was. That was about 8 or 9 p. m. I replied saying that one well was at the distance of 200 yards and another at 25001-300 yards'. It will be seen that this story does not tally with that of the Bhusawal Station Master either as to the first sender of a practice message or the hour at which the Bhusawal message was sent. The telegram No. 3^ is inconsistent with either story of the practice message. The Bhusawal Station Master admits that this telegram (No. 35) does convey to his mind that the Varangaum Station Master did not at that time know that the fire engine would be no good. I am unable to accept the story of the practice message. The trying Judge was not satisfied with the evidence of the Station Masters as to the messages actually sent but sees no reason to doubt the broad fact that the question of sending the pump from Bhusawal to Varangaum was considered and the conclusion come to that it would be useless to do so. I am, however, unable to reconcile this view with the telegram No. 35 and the admission of the Varangaum Station Master that when he sent it off he still thought there was time to save some of the cotton and therefore wired ' arrange sharp '. But, even if the view of the trying Judge upon this point be accepted the defendants have to meet the difficulty caused by the proof that the well referred to by the Varangaum Station Master was only 53 feet from the nearest railway siding. He believed that with a hose and pump he could put out the fire by water from that well. If he misled the Bhusawal Station Master as to the distance and so caused that officer to refuse his request for the appliances the defendants are responsible, for they do not establish that they took the care a reasonable man would have, taken in trying to save his own goods. If an engine had been sent with the pump and hose it could have been used to shunt the waggon with the burning cotton on to the siding near the well and even if as is. deposed to the engine would then have been nearest to the dead end of the siding we are not told what harm would be done by leaving it there till the fire should be extinguished. The Bhusawal Station Master says he never considered the question of sending an engine for 'the waggon containing the burning cotton and d. not consult the Varangaum engine driver (Millard) about i^ It appears to me upon the evidence that the Bhusawal Static>s Master was negligent and but for his negligence an engine and appliances might have been soon at Varangaum with the help of which much of the loss would have been avoided. I am, therefore, of opinion that the appeal should be allowed.
13. On the question of damages for not sending the pump and hose to Varangaum the Advocate General suggests that we may assume that the cotton would have been damaged by tire for which the defendants are not responsible to the same extent as the bales which were rescued and that all the rest of the plaintiffs' bales would, but for the defendants' negligence, have been saved with a selling value of Rs. 87 per bale. They have 'already received the proceeds of 37 bales on this basis. They are thereupon entitled to the value of 53 more bales at Rs. 87 per bale with interest at 9 per cent, from the 17th of April 1909 on the amount already received till payment and on the damages now decreed till judgment. Plaintiffs to have three-fourth of their costs throughout. Interest on judgment at 6 per cent.
14. I entirely agree, but should like to explain shortly, in my own words, why I am unable to accede to one of the main arguments addressed to us on behalf of the appellants.
15. The facts have been narrated by the Chief Justice, and it is unnecessary to recapitulate them. It is enough to say that the appellants' goods were destroyed by fire while they were in the exclusive possession and control of the way company, and that the company have been unable to show from what cause the fire originated. Admittedly the company have given all the evidence which it lay within their power to give on the point, and that evidence is both voluminous and elaborate; but the result is that the actual cause of the fire remains unascertained, and we are left to choose between various-competing theories of greater or less probability. Different minds would prefer different theories. For my own part I am inclined to regard as the likeliest theory that which ascribes the fire to the introduction of a spark from the engine into the narrow ventilating crevice left below the projecting roof of the waggon. But any such selection appears to me to be no more than conjecture more or less plausible, and as a matter of evidence 1 think we are bound to hold that the cause of the fire is unascertained.
16. In this state of the facts it was contended for the appellants that there is an end of the matter : that is, that inasmuch as the goods were destroyed by fire while they were in the exclusive control of the company, and the company are unable to show from what cause the lire originated, unable consequently to show that the fire was not beyond prevention, therefore the company must, without more, be held liable. On the other hand it was urged for the company that, though they are unable to prove the cause of this particular fire, and though the burden of proving due care admittedly rests upon them, it is competent to them to discharge that burden by satisfying the Court on the evidence that, in regard to the appellants' goods, they exercised all the care which is required of them as bailees for hire under the Contract Act.
17. I am of opinion that the respondent-company's contention on this point should prevail. As I read Section 72 of the Railways Act and Sections 151, 152 and 161 of the Contract Act, the question whether the company have, or have not, taken the care prescribed is to be answered by reference to the entire evidence on the record; that the fire occurred while the goods were in their sole possession may be, and in my judgment is, prima facie evidence that due care was not taken, but the inference thus suggested may be repelled and the contrary inference established on adequate evidence to this effect being given by the company. It would, I venture to think, be a novel view to take that the bailee must inevitably be held liable for every accident of which he is unable to assign the precise [cause, and I,,-see nothing in the Railways Act or in the cases which were cited to warrant so extreme a proposition. ,But I need not pursue this aspect of the subject, for the argument on the appellants' behalf was not sough to be based on any words of the Statute; the sole foundation assigned for it was the decision of the Privy Council in The Rivers Steam Navigation Co. v. Chouttnull Doogar ILR (1898) Cal. 398. That was a suit to recover the value of certain drums of jute, which had been received by the company on board their fiat for delivery at Calcutta and which, together with the fiat itself, had been destroyed by fire. The Judicial Committee affirmed the decree of the High Court, which held the company liable. On behalf of the appellants reliance is placed on certain passages in the judgment of Lord Morris, it being contended that the effect of these passages is to establish the proposition that the carrier is liable unless he can show affirmatively how the accident-in this case, the lire,-arose, and by this means prove that it originated from a cause which involved no negligence on his part. It is not necessary to notice certain points of distinction between the case cited and the present case, for they would be important only if it were held that Lord Morris's judgment is authority for the proposition urged for the appellants; and in my opinion that is not so. The judgment must be read as a whole and in the light of the facts which were then before the Judicial Committee; and, so reading it, I think it does not support the view presented for the appellants. On the contrary the judgment, as I understand it, enforces the company's liability, not merely because the fire occurred on their flat through an unascertained cause, but because, on a general review of all the evidence, it was held that the company had failed to exonerate themselves or to displace the inference which naturally arose from the fact that the plaintiffs' goods were destroyed while in the exclusive possession of the company. But the judgment examines and discusses the evidence offered on behalf of the company, and that evidence is set aside not as irrelevant, but as insufficient. I agree, therefore, with Robertson J. that it was open to the railway company in this case to exonerate themselves by satisfying the Court of their carefulness, both generally and in respect of the plaintiffs' goods, notwithstanding that they were unable to prove the exact cause of the fire. If that is so, then I think, upon the evidence, that they have exonerated them-selves quoad the outbreak of the fire, but not quoad the steps taken to extinguish it.