Deoki Nandan, J.
1. This is a plaintiff's second appeal in a suit for recovery of Rs. 11,000/- as damages. The suit was dismissed by both the courts below. Hence the second appeal.
2. The plaintiff owned a caterpillar type tractor which had chains instead of rubber wheels. The tractor was purchased by it in the year 1946, for Rs. 45,000. The plaintiff has a farm in village Kichha and another in the adjoining locality known as Lakhimpur Block. According to the plaintiff's case the tractor was on its way to its farm in the Lakhimpur Block. The gates of the railway level crossing were unlocked. There was no gateman present at that time and while the tractor was just about crossing the railway line, the Lucknow Kathgodam Express collided with it and threw it off at a distance of about 20 feet, causing serious damage to the tractor. The plaintiff pleaded that the defendant Railway Administration was negligent in not making proper arrangements at the level crossing for the safety of the public and prevention of such accidents. According to the plaintiff the damage to its tractor was caused on account of the negligence, carelessness and misconduct of the servants of the defendant Railway Administration. Rs. 10,564/- were alleged to have been spent on repairs of the tractor including replacement of broken or damaged parts Rupees 5/- on notice and correspondence, and Rs. 429/- were claimed as damages on account of loss of business and interest. This made up the total claim of Rs. 11,000/-.
3. According to the defendant Railway Administration, the level crossing was unmanned, it always remained open and the passing trains were visible on either side of the railway line from a considerable distance; that the tractor driver attempted to cross the railway line without taking due precautions that the tractor was not fitted with punch plates or steel sheets over the track, which must be fitted on a caterpillar type tractor before crossing a railway line, and that the tractor having got stuck up between the rails, it was abandoned on the line and that is why when the Lucknow Kothodam Express was passing that wayon the morning of 15th March 1957, the tractor was thrown off by the impact of the railway engine, although the driver of the train stopped it as quickly as he could under the circumstances. The accident, it was pleaded by the defendant Railway Administration, was the result of the negligence of the driver of tha tractor who should have at least signalled the train to stop, in the circumstances.
4. The trial court framed the following three issues:--
(1) Whether the accident was the result of gross negligence of the defendant, inasmuch as the Railway crossing was not closed?
(2) Whether the driver of the tractor was negligent in crossing the Rly. track and the tractor had got stuck on the rails? If so, its effect?
(3) To what amount of damage, if any, is the plaintiff entitled?
5. The trial court found on issue No. 1 that the proximate cause of the accident was not any negligence of the servants of the Railway Administration but the negligence of the employees of the plaintiff. The tractor had suddenly stopped on the railway track and could not be moved therefrom in spite of all the efforts made by the driver and the cleaner of the tractor. It was under the circumstances the duty of the driver of the tractor at least to have given some signal to get the train coming from Baheri side stopped. It was not the duty of the Railway Administration, under the Indian Railways Act, to provide gates on all level crossings. In the present case, the Railway Administration had fixed two pillars each on both the sides of the level crossing, and although there was no gate, there was a chain hanging in between them to warn the public of the approach of the level crossing. There were also signboards on the road on both the sides of the level crossing to warn the public of the approach of the level crossing. No further precaution was needed to be taken by the railway administration to warn the public of the danger inherent in crossing the railway track. Further, the plaintiff's employees were fully aware of the passing of the trains on that level crossing and before attempting to cross it, they ought to have seen the signals in order to ascertain whether a train was about to pass. The surrounding area was not so developed as to have imposed an obligation on the railway administrationto man the level crossing with gates to be closed when a train was about to pass. In the result, the trial court answered the first issue in the negative against the plaintiff, and the second issue also against the plaintiff. In view of these findings the third issue was answered by saying that the plaintiff was not entitled to any damages, and the suit was dismissed with costs. The lower appellate court has affirmed these findings and the decree. As a fact, it has found that what actually happened was that while the tractor was crossing the railway line, its fuel system failed and it got jammed and could not be cleared from the railway track before the arrival of the train. The tractor driver knew that the Lucknow-Kathgodam Express was due to pass that way when he attempted to cross the railway line. He made no efforts to stop the approaching train. However, the driver of the train took all possible steps to stop the train which was running at a slow speed, but could not prevent the collision, and the train stopped very near after throwing off the tractor.
6. The facts found by the two courts below could not be seriously disputed by the learned counsel for the appellant but he urged, on the basis of certain decisions, that it was the duty of the railway administration to provide a manned level crossing wherever a road crosses the railway track and if the railway administration does not do so or to take the necessary steps to close a level crossing, whenever a train is about to pass, it is guilty of negligence and must compensate any damage caused to the members of the public if they or their property are hit and damaged by a passing train.
7. The first case relied upon by the learned counsel was Daya Shankar v. B. B. and C. I. Rly. Co. (1931 All. L. J. 847). In that case the plaintiff was travelling in his car and finding the gates of level crossing open, he tried to cross the rails and while doing so the railway engine collided with his ear and broke it. It was held that the plaintiff was not guilty of contributory negligence and that he was entitled to recover damages from the Railway Company. That was a case of a manned level crossing and the decision turned on the question whether the plaintiff could be said to be guilty of contributory negligence when the gates, though provided at the level crossing, were open, and the plaintiff might have been misled into thinking that the line was safe for crossing.
8. Another decision, which is also a case of a manned level crossing, relied upon by the learned counsel for the plaintiff appellant was that in Mata Prasad v. Union of India, (AIR 1978 All 303). The aforesaid decision in Daya Shankar's case was relied upon therein.
9. In Imaman v. Union of India, (AIR 1976 All 85), which was not a case of a level crossing a goods train was running at a high speed. The deceased had purchased a ticket and was crossing the railway track as there was no over-bridge. The deceased was in a hurry to catch the train by which he had to travel. The driver of the goods train did not employ due care, caution and skill while driving it at a high speed and the railway staff did not issue any warning to the passengers of the approaching goods train. The facts of this case were entirely different and the decision therein has no applicability to the facts of the present case.
10. In Swarnalata v. Union of India, (AIR 1963 Assam 117), it was held that there is an obligation on the part of the railway administration to ensure that whenever the railway passes over a thoroughfare, adequate warning should be given to the public of the passing of the trains, at the time they pass, so that accidents may be avoided. This duty need not necessarily be a statutory duty. It is implied and inherent in the function to be discharged by a railway administration in running the railways. In this case the railway line crossed a busy road at a point from where the in-coming trains were not visible due to houses and trees and the train could be seen only from the railway track itself, and while a lorry was crossing the railway track its driver saw a coming train and speeded the lorry but the train hit the rear portion of the lorry causing damage thereto. On these facts, it was held that the lorry driver took all the necessary precautions and was not guilty of contributory negligence. Indeed, all that he could do was to clear the lorry off the track when he saw the train coming but did not succeed in the attempt.
11. Ramesh v. Union of India, (AIR 1965 Pat 167), was also a case of a railway, line crossing a busy road at a point from where the in-coming train was not visible until the passerby was on the railway track itself.
12. The question which really arises in the present case is whether the railway administration was bound in law to provide a manned level crossing with gates at the place in question and to see to it that the gates were closed whenever a train is about to pass on the railway line. The level crossing in question was away from any village or town. There was no indication anywhere that the road was a busy one, The railway administration had provided chains to be hung by the two pillars on each side and had also provided signboards on the road on each of the two sides of the railway line to warn the public of the danger of passing trains. It has not been suggested that there was any statutory duty on the railway administration to man all the level crossings. Railway tracks cover vast distances in our country and anyone can cross the railway line wherever he likes, of course, apart from the areas close to busy railway stations. The place where a road crosses a railway line or, in other words, the land beneath the railway crossing is railway property, the public have a right to cross the railway line at the point where a level crossing is provided, whether on foot or on a conveyance. But that does not necessarily imply a corresponding obligation on the railway administration to close all such level crossings by gates or such other devices, when a train passes that way, That would be placing an impossible burden on the railway administration and if it was necessary in law, the Indian Railways Act would have taken care of that. Under the circumstances, it is the duty of every member of the public, who uses a road while crossing a railway line, to be on the look out for trains coming from either direction. The fact that a level crossing is provided with ample warning to the members of the public of the danger of coming trains is, in my opinion, sufficient, and any member of the public who crosses a railway line must do so at his own risk. The very fact that a railway line is there is sufficient to warn him of the danger inherent in crossing it. The railway administration does not invite the members of the public to cross the railway lines. It only suffers their doing so at places specially earmarked for the purpose by providing level crossings. Indeed, the fact that railway administration had provided chains on the pillars on both sides of the railway track, indicates that the intention was to keep the chains hung allthe time, and any one wishing to cross the railway track at that place could do so after removing the chains and then replacing them after having crossed the railway track. It was not the duty of the railway administration to have provided a man to do so all the 24 hours.
13. Moreover, on the facts found, the tractor did get stuck up on the railway track itself while crossing it. Whether it got stuck up on account of the want of steel plates or on account of failure of its fuel system, is not very relevant. The relevant thing is that the tractor got stuck up on the railway track at that time. The plaintiff had no business to leave the tractor there. Indeed, it was the duty of the plaintiff to have removed the tractor as soon as possible and to warn all approaching trains of the danger on account of the sticking up of tractor at that place. It was lucky that the Lucknow-Kathgodam Express, which passed that way, was running at a slow speed and did not, therefore, get derailed on account of the impact of the collision with the tractor. The damage caused to the tractor was the plaintiff's own doing. The railway administration was in no way, liable for it.
14. The appeal fails and is dismissed with costs.