1. In this case three bales of piece goods weighing five maunds each were stolen from a sealed wagon in the Howrah goods yard. The theft was discovered at 11 o'clock on the night of the 6th of April 1921. It presumably, therefore, took place between dark and that hour. The goods had been entrusted to the Railway by the plaintiff under the Risk Note Form B and in this particular case it was necessary for the plaintiff to show either wilful neglect by the Railway Co., or that there was theft, or connivance at theft by a Railway servant or servants. Nothing is known, other than those facts which we have stated, of the circumstances under which the bales disappeared, except that it must be a matter of common knowledge that the goods yard is large in its extent, being the goods yard of Howrah, also, of course there is evidence and it must be a matter of common knowledge, that the public is not ordinarily allowed free access thereto. The Court of first instance, for reasons which it gave, came to the conclusion that there was wilful neglect by the Railway Co., and decreed the plaintiff's suit. The lower appellate Court has reversed this decree. The real important fact in this case is that the three bales, two of which only were the property of the plaintiff, were as the learned Judge of the appellate Court says:
Bulky and heavy articles and it is said they would weigh about five mounds each, that is to say, it would require two or three men to remove each bale.
2. This consideration weighed very powerfully with the trial Court, and very properly so. The learned appellate Court brushes this argument aside in the following passage.
Much is made of the fact that the bales removed were heavy and would have required two or three men to carry them and could not have been Carried very quickly, and that in the process of carrying them the people carrying them would expose a good deal to view. But I do not think that this shows either gross negligence or connivance on the part of those who are put to guard the yards, for the yards must cover a very large area and as a general rule such places are not very well lighted; and although of course, the thieves take certain amount of risk is inevitable in a thief's calling; and in this particular branch of stealing I do not think that the risk at detection is really very great, for the thieves can always drop their burden and run. In that case, of course, that particular theft is frustrated, but the thieves are by no means necessarily caught, and can easily proceed to business again the next night, probably with batter fortune.
3. We think that the whole of this passage suggests an entire misconception of the real consideration to be weighed.
4. The question is not whether a thief who was disturbed in the act of his offence could easily escape, but whether he could easily carry through his enterprise and get away with the property. The fact then that he could easily escape is no reason for rejecting the argument deduced from the extremely bulky and heavy nature of the property stolen. It is impossible to conceive that if there had been anything approaching an efficient patrol of the yard, a theft of such bulky merchandise could have been carried through successfully. Putting aside, therefore, the facility with which the thief could escape if disturbed in his act as being no reason for rebutting the other evidence of wilful neglect, we find that there is no sufficient reason for the lower appellate Court having disturbed the finding of the trial Court.
5. We think, therefore, that this appeal must be allowed. It is allowed accordingly. We set aside the decree of the lower appellate Court and restore that of the Court of first instance and the appellant will have his costs all through including costs in the lower appellate Court and in this Court.