1. This is an application in revision against a decree of the Small Cause Court Judge of Jhansi, dismissing the applicant's suit for damages by reason of the loss of certain bags of sugar which were entrusted to the defendant Railway Companies or one of them for the purpose of carriage from Calcutta to Jhansi.
2. The lower Court found that the train on which the consignment of sugar had been placed was stopped at a signal for 115 minutes and that some dacoits took advantage of this long stoppage to raid the train and carry off the goods or a portion of them. It is believed that these robbers threatened the guard with death if he interfered. It is admitted that the goods were consigned under Risk note B which relieved the Railway 'Company from any loss other than a loss occasioned by wilful neglect and which defined 'wilful,' neglect as excluding robbery on a running train. The judgment mentions that the goods were consigned both under Risk note 'B' and Risk Note A. It has been explained that Risk Note A was a subsidiary contract signed by the consignor that owing to the insecure condition of the bags he would not hold the Railway Company liable for loss owing to insecure packing. This however has no bearing on the present case as the suit was brought for damages for the total loss of 28 bags.
3. This application in revision contains four grounds, but only two grounds have been pressed in this Court. The first is that the Railway Company is liable on the ground that such a long stoppage of 115 minutes at a signal was an act of wilful negligence inasmuch as it invited a robbery or dacoity upon the train. The answer to this plea is that in the absence of evidence to show that robberies on trains were frequent in this locality, it is impossible to say that the attack on this train by dacoits was a natural and probable result of the stoppage of their train. In any case even if such stoppage by itself amounted to wilful neglect on the part of the Railway Company, this wilful neglect will not make the Railway Company liable in view of the terms of the Risk note which directs that robbery from a running train shall be excluded from consideration. This brings me to the second plea. It is that the robbery in this case was not robbery on a running train. The applicant's counsel's contention is that a running train is synonymous with a train in motion. He has not referred me to any decision in support of this interpretation of the expression 'running train.' There has been at least one decision of this Court and several decisions of the Judicial Commissioner's Court (now the Chief Court of Lucknow) to the effect that a running train will include a train on its journey even though it be stopped at a signal. The lower Court was certainly entitled to construe the expression running train' so as to include a train temporarily stopped at a signal between stations. It is indeed probable that the expression 'running train' should be construed as a train between junction and junction.
4. For the above reasons I dismiss this application with costs including fees in this Court on the higher scale.