Chandra Reddy, C.J.
1. All these appeals and revisions preferred against the judgments of different Courts in the State raise a common question relation to liability of the Railway administration for the loss of goods occasioned in the circumstances that will appear presently, and so could be disposed of in one judgment.
2. Appeals Nos. 370/1955, 575/1957, 15, 70, 38 and 37 of 1958 deal with O. S. Nos. 109 and 113 of 1953 and 52 to 55 of 1954 on the file of the Subordinate Judge, Narsapur, while A. S. Nos. 369/1957, 241/1959, 250/1959 and 169/1958 are against the judgments of the Subordinate Judge, Kakinada in O. S. Nos 154/1933, 63/1954, 74/1955 and 6/1956, S. A. Nos. 502, 913 and 914 of 1957 are preterred against judgments in A. S Nos. 359/1955 (Sub-Court, Eluru) and 55 and 56 of 1955 (Sub-Court, Narsapur) respectively. S. C. Nos. 405, 287, 285, 286 and 646 of 1953 and 155 and 294/1954 have given rise to C. R. P. Nos 1118/1954 and 886, 888 and 889 of 1959 and 1361 of 1956 and 1029 and 1374 of 1957 respectively.
3. These several suits were brought to the Courts mentioned above for the recovery of the value of the goods made over to the railway administration on behalf of the plaintiffs for transmission to the various railway stations (indicated in the railway receipts covering these goods), but not delivered to the consignees The non-delivery of these goods was a sequel to the death of Sri Potti Sreeramulu who undertook a fast unto death to force the issue of formation of Andhra State. We will presently see how this unfortunate event impinged upon the subject-matter of these appeals and revisions. For an appreciation of the issues arising in this litigation, the material facts may be shortly narrated.
4. Several consignments of cotton piece goods were booked in the last week of November and the first week of December of 1952, from Wadi-Bunder, Erode, Madurai, Madras and some other stations on the southern and central Railways to Palakol, Tanuku, Rajahmundry, Bhimavaram, Narsapur and Kakinada. On the 15th of December, 1952, some bales of cotton goods were consigned at Bezwada to be transmitted to Palakol. Goods of other descriptions were also entrusted to the Railway administration on different dates in the months of November and December, 1952 and in one or two cases in the latter half of October also at some of the stations in the Southern and Central Railways for despatch and carriage to some of the stations mentioned above.
It is needless to give details of these consignments or trace the journey thereof till they reached Bezwada as they do not in any way affect the questions before us. Suffice it to say, that they all arrived at Bezwada on different dates on or before the 14th December, 1952. It is relevant to state here that the destinations of the goods involved in these cases lie within the Madras and Bezwada, railway district which covers the area between Madras and Vizag. In that district Bezwada is the biggest junction and the most important station for purposes of railway operations, where a number of lines meet and the trains from several lines are dissolved, remarshalled and made into new trains.
5. Within 2 or 3 days of the arrival of these goods, they were unloaded from the wagons which carried them and all the consignments, except those involved in O. S. Nos 109 and 113 of 1953 and 52 to 55 of 1954 and S. C Nos 285 and 286 of 1953 were reloaded into wagons which were revetted and sealed and were waiting to be despatched to destinations for which they were meant by the next available trains. In regard to the consignments which formed the subject-matter of O. S. Nos 109 and 113 of 1953 and 52 to 55 of 1954 and S. C Nos. 285 and 286 of 1953, they were kept on the transhipment platform for loading them into wagons to be carried to the concerned stations. It may be mentioned here that these packages had to be re-arranged in such a way that the available wagons should get a minimum load of 200 maunds for onward despatch.
6. At the material time the situation at the Bezwada railway station was confused and there was not the normal movement of goods, because of the dislocation in the train services etc. By that time, the condition of Sri Potti Sriramulu, who, as already stated, had undertaken a fast unto death to achieve his object of the formation of the Andhra State, was causing anxiety. He was gradually sinking. As the news of the deterioration in the health of Sri Sriramulu began to spread, the student population at Bezwada and in the neighbourhood commenced disconnecting hose-pipes connecting wagons and removing washers of hose-pipes and pulling inter communication chains etc., thus dislocating communications which resulted in the late running of most of the trains that had to pass through Bezwada and causing dislocation of the movement of goods.
7. On the night of 15th December, 1952, Sriramulu passed away. This news which was broadcast in the morning of 16th, caused the population of Bezwada and the villages in the neighbourhood to get excited. Immediately, large number of people rushed to the Bezwada railway station as also to other stations nearby but with which we are not concerned now (the trouble centre being Bezwada). The original intention of this crowd appears to be to prevent rice being transported to Madras and to have it taken back from the station to the merchant godowns. Within a shortwhile, the crowd swelled into several thousands, became tumultuous and began to indulge in acts of hooliganism and violence which took the shape of incendiarism and looting and other forms of destruction of property. They not only looted property lying on the transhipment platform, but also broke open the wagons including those containing goods belonging to the parties to this litigation in addition to destroying records and other property pertaining to the railway administration and some of the restaurants and book-stalls that were on the platform.
8. By about midday there was slackening of looting. Just about that time, the District Magistrate, obviously under the directions of the then Government of Madras, promulgated an order under Section 144 of the Code of Criminal Procedure which was announced through loud-speakers and also a big contingent of reserve police had arrived. This led to the dispersal of the crowd which was thinning by that time.
9. Shortly thereafter, the railway staff with the aid of Watch and Wards Sepoys and the Railway Police collected such of the packages as were left behind by the looters and as were strewn in the neighbouring fields and loaded them in the wagons for transmission to their proper destinations, for delivery to the persons to whom they belonged. That evening and the next morning an inventory of all things that were found either in the wagons or in the several of the yards within the promises of the station was prepared and later on the goods that wore saved were sent to the persons entitled thereto. It is needless to say that the damage done on the morning of 16th to the property belonging to the private persons and to the administration was on an extensive scale. It is in these circumstances that there was non-delivery of the entire consignments in some cases and short-delivery in other cases.
10. The consignees, after waiting for sometime, issued notices to the concerned railway administrations under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure, demanding delivery of their goods or the value thereof. The appropriate railway authorities sent replies stating that the goods were lost in the course of transhipment as a result of the mob violence and looting on the 16th of December 1952 and pleading their non-liability in that behalf for the reason that the loss occurred owing to circumstances beyond their control.
11. These answers obliged the consignees of the goods to bring actions for the recovery of goods or compensation for the loss thereof in the Courts mentioned above.
12. Many of the suits which were filed in the District Munsif's Court of Narsapur were transferred to the Subordinate Judge's Court, Narsapur, to be tried along with O. S. Nos. 109 and 113 of 1953 and 19/1954 and suiis filed in the Munsif's Court of Kakinada and Rajahmundry were transferred to the Sub-Court, Kakinada, to be tried along with O. S. No. 154/1953 at the request of the parties. These suits were resisted inter alia on the defence that the loss or destruction of the goods, whose value was claimed by the parties, was due to the extraordinary events which occurred on the 16th of December, 1952 which could not be foreseen and which could not be prevented and hence the defendants had not incurred any liability in that behalf. We are unconcerned with other answers of the defendants as the only point that was debated before us was about the responsibility or the administration in the circumstances indicated above.
13. The Subordinate Judge of Narsapur, while decreeing O. S. Nos. 109 and 119 of 1953 and 52 to 55 of 1954, S. C. Nos. 285 and 286 of 1953 dismissed O. S. Nos. 19 and 50 of 1954 and S. C. No. 287/1933 (O. S. No. 53/19,54 was partly decreed and partly dismissed). He found that the railway administration exonerated itself so far as the consignments that were reloaded into wagons which were rivetted and sealed were concerned as the misfortune occurred for reasons beyond the control of the ad ministration. The decrees granted against the defendants were in respect of bales of cotton goods which were allowed to be on the transhipment platform being of opinion that the administration did not give effective protection in regard thereto and they could not, therefore, bring themselves within the protection of Section 152 of the Indian Contract Act.
14. The Subordinate Judge of Kakinada dismissed all the suits before him having reached the condition that the loss of goods involved in all the suits before him was under circumstances overwhich the railway administration had no control, they having been carried away by an unruly mob. Some of the suits (O. S. Nos. 104 and 105 of 1954) though decreed by the District Munsif of Bheemavaram were dismissed on appeal by the Subordinate Judge of Narsapur. The Subordinate Judge, Eluru, confirmed the dismissal of O. S. 719/1953 by the District Munsif, Kovvur.
The District Munsif of Vizianagaram and Narsapur who tried S. C. Nos. 646/1953 and 405/1953 respectively decreed the suits holding that the defendants were guilty of negligence, in that, they did not summon either the military or the police to prevent the mob from looting the goods. It is needless to say that this reasoning of the District Munsifs is extravagant and none of the counsel for the successful parties attempted to support it. The defendants brought appeals and revisions against the judgments decreeing the suits, viz., O. S. Nos. 109 and 113 of 1953, and 52 to 55 of 1954 and 646 of 1953 and S. C. Nos. 285, 286 and 405 of 1953, while the aggrieved private parlies have impeached the decree in O. S. Nos. 53, 19 and 50 of 1954 and S. C. No. 257 of 1953; O. S. No. 154/1953, 74/1955, 63/1954, 6/1956 and S. C. Nos. 155/1954 and 294/1954; and O. S. Nos. 104, 105, 719 and 2 of 1954 and 679 of 1953,
15. At the outset it must be mentioned that the findings of the Courts below that the consignments were lost at Bezwada railway station as a result of looting are not impugned. In fact, arguments on either side proceeded on the assumption that they were so lost. None of the counsel even attempted to sustain the halting observations of the Subordinate Judge, Narsapur, that there was not adequate evidence in support of the case that the consignments on the transhipment platform were so lost, the Judge himself proceeded on the assumption that they were so lost and also having regard to the overwhelming evidence in the cases that they were lost on account of looting. The only question that was debated before us was as to the extent of the liability of the railway administration in regard to the loss of the several consignments.
16. Since this controversy is to be resolved with reference to the relevant statutory provisions, we will now turn to them.
17. Section 72 of the Indian Railways Act which contains the measure of the general responsibility of the railway administration runs as follows :-
(1) The responsibility of a railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration tobe carried by railway shall, subject to the otherprovisions of this Act, be that of a bailee underSections 151, 152 and 161 of the Indian ContractAct, 1872.
(3) Nothing in the common law of England or in the Carriers Act 1865, regarding the responsibility of common carriers with respect to the carriage of animals or goods, shall affect the responsibility as in this section defined of a railway administration,'
In this enquiry we are not concerned with Section 77 which is the successor of Section 72 insertedinto the Act in 1861, since we are governed by Section 72, which was in existence at the time when the causes of action for these claim: arose. Further, there is no substantial difference between these two sections and as such it is immaterial which of the two applies.
Section 151 of the Indian Contract Act recites:
'In all cases of bailment the bailee is bound to take as much care of goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same hulk, quality and value of the goods bailed.'
18. Section 152, which also deals with the responsibility of the common carrier, enacts:
'The bailee, in the absence of any special contract, is not responsible for the loss, destruction, or deterioration of the thing bailed, if he has taken the amount of care of it described in Section 151'.
It is seen that there is no material difference between the two sections except that the one contains the positive concept and the other negative.
19. Section 161 sums up the responsibility of the carrier for the non-observance of the precautions indicated in Section 151. It says:
'If, by the default of the bailee, the goods arc not returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods from that time.'
20. It is manifest from the statutory provisions quoted above that the responsibility of the railway is measured by the text formulated by Section 151. It is not an unqualified liability. The administration can claim immunity if it can prove that it had taken such care of the goods entrusted to it which a reasonable man or a man of ordinary prudence would have taken.
21. Indisputably, the onus is on the administration to prove that it was not negligent, i. e., it had not omitted to do anything which a reasonable man would do, or did not do, something which a prudent and reasonable man would not have done. But when once it is able to establish that everything that is possible had been done in regard to the consignments that were made over to it for carriage, it absolves itself from all responsibility.
22. It is not necessary to indulge in copious citation to vouch this proposition since the principle is contained in the statutory provisions themselves.
23. However, as a number of cases were cited to us, we will do well to refer to a few of them, the leading case on the subject being of the Calcutta High Court in Surendralal Chowdhury v. Secretary of State, 43 Ind Cas 263 : (AIR 1936 Cal 892 (2)). It was decided there by Mr. Justice Sir Asutosh Mookerjee and Mr. Justice Cuming that where goods delivered to the railway administration for transmission destroyed through an act of God and not owing to any negligence on the part of the railway, the latter were not responsible for the loss. It was observed there that the burden lay upon the railway to prove the existence of circumstances which exonerate it from liability for the loss. The learned Judges referred to the definition of 'negligence', as formulated by Baron Alderson in BIyth v. Birmingham Water WorksCo., (1856) 11 Ex. 781 at p. 784 'Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.'
24. In the same trend of thought is the decision of the Allahabad High Court in Manohar Lal Gokul Prasad v. Governor General of India, : AIR1952All648 . The loss in that case was traceable to the disturbances that occurred in relation to what is called the 'Quit India Movement' in August 1942, when there was widespread destruction of properties belonging to governmental agencies, the cutting of telegraphic wires and dislocating communications. In that case, damages were claimed by the consignee of the goods against the administration. The claim was opposed by the railway on the ground that the destruction of the properties was caused for reasons over which it had no control and that it had taken that care which could be expected of a man of ordinary prudence, that the excited events could not be foreseen by it and as such could not be provided against. The answers of the railway were accepted and the suit was dismissed.
25. In dealing with the topic, this is what Justice Misra remarked:
'It would thus seem that mob violence was sudden, unexpected and beyond the defendant's control. It is well known that Railways are peace time organisations. They cannot be expected to cope with situations which could be handled only by the military. Section 72(1), Railways Act does not demand of the railways greater care or skill than that which is expected of an ordinary prudent man. ..... In sudden emergencies a man takes the best precaution he can, and he cannot be held guilty of negligence if upon a subsequent appraisement of the situation a way out is discovered and it is found that the course taken was not the best and the adoption of some other strategy might have saved the situation, or prevented the loss. In my opinion, due care and precaution were taken by the Railway Authorities in handling and protecting the consignment and there was no negligence on the part of the defendant.'
To a like effect is the judgment of the Patna High Court in Governor General in Council v. Gouri Shankar Mills Ltd., : AIR1951Pat382 . It was laid down there that under Section 72. Railways Act, the responsibility of railway administration is that of a bailee under Sections 151 and 132 Contract Act, that the railway must take such care of the goods as a man of ordinary prudence would take of his own goods of the same quality and value under similar circumstances, and that the loss of goods entrusted to a bailee is prime facie evidence of negligence and the burden of proof, therefore, to dispose negligence lips on the bailee and this burden lies also an the railway administration in the absence of special circumstances to the contrary. But if the consignment was looted by an unruly mob under circumstances over which the administration had no control, the railway administration could not be held liable for damages and non-delivery.
26. Now bearing these principles in view, we have to judge the responsibility of the railway administration with reference to the material on record.
27. It is necessary to say here that no complaint is made before us (whatever might have been the attitude of the parties in the Courts below) that the goods were detained at Rezwada for an unduly long period having regard to the congestion in the goods yard and paucity of accommodation there. We will now proceed to consider whether the railway administration had discharged the burden of establishing that it was not guilty of negligence and that it acted like a reasonable and prudent person in the circumstances of the case.
28. It is in this context that we have to envisage the situation on the morning of the 16th following the death of Potti Sriramulu, (After describing the situation (Para 29-32) as deposed to by some of the defence witnesses, their Lordships proceeded).
33. It is manifest that the railway staff took not only reasonable steps but all possible measures they could. All these witnesses asserted that the railway police, Special Armed Police and Watch and Ward Sepoys were posted at different places to protect the property lying on the transhipment platform and loaded in the wagons and at all vulnerable places. They could not have done anything belter to prevent looting of the property. Having regard to these circumstances, it is needless to state that the reasons given by the District Munsifs of Yizianagaram and Narsapur, viz., that the railway should have summoned the military or the police, cannot bear any scrutiny. They overlooked the fact that the railways have no control over the military or the police. Moreover the District Munsif of Vizianagaram obviously overlooked the fact that there is no military stationed at Bezwada. It follows that the railway had satisfied the test laid down in Section 151 of the Indian Contract Act and comes within the protection of Section 152.
34. In this view of the matter it is unnecessary for us to consider whether the suits O. S. Nos. 154/1953, 63/1954, 74/1955 and 6/1956 and S. C. Nos. 153 and 294 of 1954; and O. S. Nos. 104 and 105 of 1954 were barred by limitation or not.
35. This disposes of A. S. Nos. 574/1957, 13/ 1958. 573/1957, 369/1957, 250/1959, 169/1958, 134/1959, 247/1959, S. A. Nos. 502/1957 and C. R. P. Nos. 886/1955, 1029/1957, 1118/1954 and 1361/1956, which bear on the goods loaded in the wagons at the time and which were to be despatched to their respective destinations.
36. The appellants and petitioners in A. S. Nos. 369/1957. 241/1959. 250/1959 and 169/58 and C. R. P. Nos. 1029 and 1374 of 1957, invite us to hold that their goods stand on a different footing and are distinguishable from those just now dealt with. They want us to agree with the Subordinate Judge, Narsapur, who opined that so far as the consignments that were left on the transhipment platform are concerned, the railway was guilty of negligence in that, they made no provision for protecting them. The Railway is charged with dereliction of duty for not keeping these goods in the goods-shed under lock and keyas required by Rule 237 (c). Rule 237 makes it obligatory on the railway to keep all the packages in the goods-shed and the non-compliance with it had exposed the defendants to the charge of negligence, argued the learned counsel for the respondents.
37. It is convenient to read here Rule 237:
237. Holding up small consignments to secure better loading and avoid delay to load goods trains: This should be availed of as far as possible except under the following conditions;
(a) If, by detaining 'smalls' consignments for more than 24 hours and not less than 48 hours a better load to a destination station or to a farthest transhipping point could be obtained, the period of detention may be relaxed to suit local conditions prevailing on different districts.
(b) Under no circumstances 'Small' must he held up for more than 48 hours. This should only be resorted to with a view to obtain better loading and if there are no prospects of doing so the goods must be despatched without causing any delay.
(c) All delayed consignments must be secured in a safe place under lock or seal.
(d) If wagons are used for more than a week as goods sheds, the C. C. M. should be advised and his sanction to such use obtained.
38. It is the alleged breach of this rule, according to the respondents, that has imposed the liability on the railway administration. But on the evidence on record it would be seen that the railway has not violated this rule in any manner. At the inception, it should be noted that the rule is only applicable to 'smalls'. Could the consignment in this ease be legitimately described as 'smalls'? in this context, it should be borne in mind that all the packages were bales of cotton piece-goods, each containing between 50 to 75 pieces and so it is difficult to conceive them as being smalls. It is needless to state that it is not easy to handle packages of this nature. D. W. 21, the Assistant Goods Clerk (then working at Rezwada) testified that the bales going by goods are not called smalls, but are called sundries. That being the position, we fail to see how that rule covers the instant case.
39. Further, as stated by D. W. 14, that rule would operate only when there is accommodation in the goods-shed. It is true, this witness did not specifically state that there was no accommodation in the goods-shed, but that seems to be the implication of the statement: 'The rules require that unloaded goods should be locked up in the goods shed during nights. That rule can be applied only if there is accommodation in the goods shed.' Rut it appears from the judgment of another Subordinate Judge of Narsapur, who heard A. S. Nos. 55 and 56 of 1955, that D. W. 3 in that case said that the goods were kept on hand on the platform till 16-12-1952 as there was no space in the goods-shed and as they could not despatch the same before 16-12-1952 as bales could be despatched only by piece goods wagon. It further appears from the evidence of D. W. 21 that these consignments were on the transhipment platform awaiting loading into wagons for carriage to respective stations. It is also argued with some plausibility by Mr. Krishnamurthy, counsel for theadministration, that these rules are in the nature of instructions to the railway servants for their guidance and that their non-observance would not furnish a cause of action to the aggrieved party. But we are not called upon to express any opinion on this question as the appeals can be disposed of without the necessity to do so.
40. Even on the assumption that there was some negligence on the part of the railway administration in this behalf, could they be made answerable for the loss
41. It should be remembered here that, but for the action of the mob the goods would not have been lost. The injurious effects are not traceable to the alleged negligence of leaving the property on the platform, but are attributable to the intervening or the over-powering cause viz., the looting of the goods. In other words, the negligent act is not followed by injurious results as a natural and probable consequence, but by the occurrence of something abnormal which could not have been foreseen and guarded against. The proximate cause for the loss is the looting by the violent mob on the 16th morning and not the alleged negligent act which constituted only a remote cause.
42. There is wealth of evidence, already extracted, to establish that the exciting cause was the extraordinary occurrence of looting and not the natural and probable consequence of allowing the goods to be on the transhipment platform. It may be that this act of the railway gave occasion to the looters to cany them away; but for the supervening event, the loss would not have occurred. In the words of Lord Sunnier 'the claim of causation was snapped by the looting'. This looting was not 'the conduit pipe through which the negligent act of the railway had flowed.'
43. This exposition of law receives support from decided cases.
44. We will first refer to Weld Blundell v. Stephens, 1920 AC 956. There the defendant, a chartered accountant was employed by the plaintiff to investigate the affairs of a company in which he was interested and in a letter of instructions to the defendant, the plaintiff made some liabellous Statements concerning two officials of the company. The defendant handed the letter to his partner who was careless in leaving it at the company's office. The manager of the company who found it read it and communicated its contents to the persons against whom those libellous statements were made. The plaintiff was sued by them for defamation and judgment obtained against him. The plaintiff then sought to recover from the defendant the amount which he had paid as damages fer breach of an implied duty to keep secret the letter of instruction. The House of Lords in agreement with the judgment of the Court by a majority ruled that the plaintiff's liability did not result from the defendant's breach of duty and that the defendant was liable for nominal damages, only. Lord Dunedin, in his speech, inter alia stated that he came to the conclusion that there was no evidence which entitled the jury to give the affirmative answer they did to the question as put to them and that the actions for libel and the damages recovered were the natural and probable consequence of the proved negligence of the defendant.
45. Lord Summer, who agreed with Lord Dunedin, stated the law in similar terms. The learned Law Lord said at page 986:
'In general (apart from special contracts and relations and the maxim respondeat superior) even though A is in fault, he is not responsible for injury to C which B, a stranger to him, deliberately chooses to do. Though A may have given the occasion for B's mischievous activity, B, then becomes a new and independent cause .....Perhaps one may be forgiven for saying that B, snaps the chain of causation; that he is no mere conduit pipe through which consequences flow from A to C, no mere moving part in a transmission gear set in motion by A; that, in a word, he, insulates A from C.'
46. If this principle is applied to the instant case, it is clear [hat the railway administration is 'insulated' by the extraordinary occurrence on the 10th morning.
47. The next case which we propose to cite is Memphis Railroad Co. v. Reeves, (1870) 19 Law Ed 909. In that case, the goods were handed over to a Railway Administration for transmission. There was delay in transit which was not satisfactorily explained. The consignment was destroyed by a sudden, violent and extraordinary flood and storm. This led the party who sustained the loss to sue the railway for compensation. Notwithstanding the fact that if the goods were corned in time they would not have been affected by flood the claim was negatived, in the view that the flood was the proximate cause and the delay in transit was only a remote cause. Reference was made to earlier cases also which expressed a similar opinion.
48. This principle was accepted by a Bench of the Calcutta High Court in 43 Ind Cas 263 : (MR 1918 Cal 892 (2)) which has already been adverted to. The learned Judges ruled that the railway administration which could not deliver the goods which were entrusted to it for despatch and carriage to Calcutta, as they were lost as a result of a severe cyclone, was not answerable to the loss for the reason that the proximate cause of the loss was an act of God, even if the railway was guilty of negligence in that, there was delay in transmission. The learned Judges extracted with approval a passage from Beven in his work on Negligence (1908) Vol. I, Page 81, to state the law thus:
'Where the negligence of a person concurs with some ordinary cause and the conjunction produces an effect injurious to some other person, the operation of such an ordinary cause, extraneous to the negligent person, will not excuse his liability for the whole of the joint effect. The law is otherwise where an extraordinary cause is the primary means of setting in motion an injurious agency and by co-operating with the negligence of a person produces injury to some other person. In this case, the negligent person is not liable, for not only would his negligence alone fail to produce the injurious effect (this circumstance, however, is common to the two cases, and notwithstanding this, in the former, there is no immunityfrom liability), but the exciting cause, being an extraordinary occurrence or an act of God, was not reasonably to be anticipated nor guarded against. The negligent act is not followed by injurious results in natural and probable sequence but only by the occurrence of something abnormal and not to be anticipated.'
To the same effect is the law stated in Governor General in Council v. Kabirram, ILR 27 Fat 151 : (AIR 1948 Pat 345). The learned Judges relied on the case of Polemic and Furness Withy and Co., Ltd., In re, (1921) 3 KB 560, in support of their conclusion. The Court of Appeal in the above-mentioned case adopted the view that if a reasonable man would have foreseen any damage as likely to result from his act, then he was liable for all direct consequences of it whether a reasonable man could have foreseen them or not. In that case Scrutton, L. J., defined what was 'direct' consequence and said that damage was indirect if it was due to the operation of independent causes having no connection with negligent act except that they could not avoid its results.
49. Shri Krishna Rao appearing for the respondents in these cases, urges that the law as stated in 1920 AC 956, Memphis Railroad Co. v. Reeves, (19 Law Ed. 909) and the two Indian Cases cited above, was opposed to the principle laid down in British Columbia Electric Railway Co., Ltd. v. Loach, 1916 AC 719 : (AIR 1916 PC 208), and invites us to prefer the doctrine enunciated therein. We are not inclined to accept this proposition. There is really no conflict between the two sets of decisions. The rule in The British Columbia Electric Rly., Co., Ltd., relates to the principle of 'contributory negligence' and does not deal with a situation like the present. Further, in that case, it would be seen that the direct cause of the damage was as much the act of the railway as the person who was affected himself. It was observed by Lord Sunnier, who was one of the Law Lords that rendered the decision in 1920 AC 956 thus:
'In the present case their Lordships are clearly of opinion that, under proper direction, it was for the jury to find the facts and to determine the responsibility, and that upon the answers which they returned, reasonably construed, the responsibility for the accident was upon the appellants solely (railway administration) because, whether Sands got in the way of the car with or without negligence on his part, the appellants could and ought to have avoided the consequences of that negligence, and failed to do so, not by any combination of negligence on the part of Sands with their own, but solely by the negligence of their own servants in setting out the car with a brake whose inefficiency operated to cause the collision at the last moment, and in running the car at an excessive speed, which required a perfectly efficient brake to arrest it.'
This case does not in any way negative the theory propounded in any of the other set of cases, viz., 1920 Appeal Cases the American or Calcutta or Patna Cases.
50. We will lastly refer to Overseas Tankship (U. K.) Ltd. v. Morts Pock and Engineering Co., Ltd., 1961-2 WLR 126 which in the submission of Mr, Krishna Rao had modified the doctrine ofdirect and probable causes and has enunciated the rule of foreseeabilily. It may be mentioned at once that the principle of foreseeability had already been adumbrated in some of the cases referred to above and also in the passage from Beven in his work on Negligence (Extracted Supra).
51. It is true that the Judicial Committee of the Privy Council in the above case laid down foreseeability as the primary and chief test and they thought that the rule of direct and indirect consequences was not quite relevant. Their Lordships of the Judicial Committee observed that the chief factor in judging the liability for the consequences of a tortious act of negligence was whether the damage was of such a kind as a reasonable man would have foreseen and that the liability did not depend solely on the damage being the 'direct' or 'natural' consequence of the precedent act. It was observed there that if a man should not be held liable for damage unpredictable by a reasonable man because it was direct or natural, equally he should not escape liability, however indirect the damage, if he foresaw or could reasonably have foreseen the intervening events which led to its being done.
52. This case thus lays down the test of foreseeability as the effective one and that the direct consequences would lead to nowhere but the never ending and insolvable problems of causation, It was remarked in the course of the judgment:
'If, as admittedly it is, B's liability (culpability) depends on the reasonable foreseeability of the consequent damage, how is that to be determined except by the foreseeability of the damage which in fact happened -- the damage in a suit? And if that damage is unforeseeable so as to displace liability at large, how can the liability be restored so as to make compensation payable?'
The general observations made by their Lordships can be usefully extracted:
'They have been concerned primarily to displace the proposition that unforesceability is irrelevant if damage is 'direct'. In doing so they have inevitably insisted that the essential factor in determining the liability is whether the damage is of such a kind its the reasonable man should have foreseen. This accords with the general view thus stated by Lord Atkin in Donoghue v. Steevenson, 1932 AC 562 at p. 580; 'The liability for negligence whether you style it such or treat it as in other systems as a species of 'culpa' is no doubt based upon a general public sentiment of moral wrong doing for which the oflendcr must pay.' It is a departure from this sovereign principle if liability is made to depend solely on the damage being the 'direct' or 'natural' consequence of the precedent act Who knows or can be assumed to know all the processes of nature? But if it would be wrong that a man should be held liable for damage unpredictable by a reasonable man because K was 'direct' or 'natural', equally it would be wrong that he should escape liability, however 'indirect' the damage, if he foresaw or could reasonably foresee the intervening events which led to its being done: of Woods v. Duncan, 1946 AC 401 at p. 442. Thus foreseeability becomes the effective test. In reasserting this principle their Lordships conceive that they do not depart from,but follow and develop, the law of negligence as laid down by Baron Alderson in Blyth v. Birmingham Water Works Co., (1856-11 Ex 781)'.
The last sentence makes it clear that their Lordships were not laving down any new rule. Further, this doctrine of foresecability docs not in any way come to the rescue of the respondents since we have already stated that the railway administration could not have anticipated trouble of this magnitude, a crowd of 30 or 40 thousand people collecting there and indulging in violence of all types, incendiarism, hooliganism and looting etc. Moreover, everything that lay in the hands of the railway administration was done to protect the property in their custody and to prevent loss or destruction of property being occasioned. In these circumstances, we are unable to assent to the theory of the Subordinate, Judge, Narsapur, who tried O. S. Nos. 109 and 113 of 1953, 52 to 55 of 1954, that the railway administration had not exonerated itself from liability in regard to the goods that were kept on the transhipment platform. That being so, his decrees awarding damages against the railway administration have to be set aside.
53. In the result, the appeals and revision filed by the railway (viz.. A. S. No. 370/1955, Tr. A Nos. 575/1957, 15, 36, 37 and 70 of 1958 and C. R. P. Nos. 1118/1954, 888 and 889 of 1955 and 1361 of 1956) are allowed and the other appeals, Second Appeals and revisions (viz., A. S. No. 369/ 1957, Tr. A. Nos. 573 and 574 of 1957, 13 and 169 of 1958, 134, 241, 247 and 250 of 1959 S. A. Nos. 502, 913 and 914 of 1957; and C. R. P. Nos. 886/1955 and 1029 and 1374 of 1937 are dismissed. In the circumstances of the case, parties will bear their own costs throughout.
54. We are thankful to the counsel for the railway administraiion and the counsel for the private parties for the able assistance they gave us.