1. This is a suit brought by a little girl aged 7 called Jayammal for damages for personal injuries against the Madras and Southern Mahratta Railway Company, Limited. I confess that I have felt little difficulty about the facts which I may briefly summarize as follows. The village of Amoor lies on both sides of the defendant's railway line and the Wallajah Road Railway Station is in the middle of the village. To the north of the line lie most of the inhabited houses which make up the village, and in one of those the plaintiff lived with her father, a toddy contractor named Jayamuni Naidu. The Post Office and certain shops lie to the south of the line. On the 15th June, 1921, the plaintiff went on an errand from the northern to the southern part of the village, and for that purpose she would have to cross the line. There are two recognised level crossings with gates where Railway servants are stationed to look after the public, one considerably to the East and the other considerably to the West of the station platform; but the evidence is that it is the habit of people who go from one part of the village to the other to cross the line at the point where the accident happened. It happened when the child was on her return journey, and the route which she took is quite clear from the plan. There is a wicket-gate close by the Assistant Station Master's house on the extreme south side of the line. It is said that it is only meant to be used by the Assistant Station Master as a means of reaching his house, but it is clear that no attempt was made to keep it locked with a key for his exclusive use. The plaintiff went through this gate and walked west-wards along the side of the line until she got opposite to the platform which she desired to reach in order to cross the bridge and so go home. She then turned sharply to the right and stepped on to the track and was immediately knocked down by a locomotive of the defendant company. The locomotive had brought in the train from Ranipet (from the west) and the evidence is that as soon as the train comes into the station the engine is uncoupled and runs eastwards down the line, until it comes to some 'point; then it changes its direction and is brought back along the loop-line (the southernmost of all the lines of rails) on which the child stepped when she was hit, to reach an engine-shed to the west of the Station for the purpose of watering. The evidence is that as soon as the engine was uncoupled the whistle was sounded. That would obviously not have helped the little girl, because, if the whistle had directed her attention and caused her to turn her head, she would have seen the engine going away from her and not approaching her. It is further said, though this is disputed, that the engine whistle was sounded again after it got on to the loop-line at the southern-most end of the two sets of rails and when it was 70 yards away from the scene of the accident. I am not convinced that the witnesses who speak to this were speaking with a definite recollection on the particular incident on this day rather than of the general practice which might have been omitted on any particular occasion. When the engine returned and came along the loop-line the driver was on the right-hand side of the foot-plate. I am satisfied that those of the plaintiff's witnesses who suggest that he stayed on the platform and left the engine to be reversed and taken to the shed by the fireman, are giving evidence which is either untrue or mistaken. I am quite satisfied that he was in charge of the engine; but I am equally satisfied that, standing on the righthand side of the foot-plate, he could not have seen this little girl walking along side the loop-line as soon as the engine got at all near to her, for the intervening body of the engine would obviously have obstructed his view. The two firemen were also in the cab, and I think it is quite clear that they kept no sort of look-out on the left side of the engine, for one of them, Manikkam, the first fireman, saw nothing and Doraiswami, the second fireman, only saw the child when she was 4 or 5 feet away from the Engine.
2. I have no difficulty in holding on the evidence before me that the practice of the villagers was to take the short-cut across the line which the little girl was taking when she met with her injuries and that no serious steps were taken by the Railway officials to prevent either adults or children from going that way. The Station Master no doubt has tried to say that when he saw people doing it he prohibited them, but I do not believe him, and Johnson, the Engine Driver, frankly admitted that he tried to keep a special look-out when he neared the wicket-gate, because he knew that people did take this short-cut habitually. I entertain no manner of doubt that if a proper lookout had been kept on the left-hand side of the foot-plate, that on the side of the wicket-gate, this accident could almost certainly have been avoided. A second whistle might have been given to warn the child if she had been seen and, if it were observed to be unheeded, the Engine could have been stopped as soon as it got into dangerous proximity to the child. I take it that Johnson, the Engine Driver, who admits that he. knew that the villagers used this short-cut habitually so as to put him on his guard to be careful at that spot, must be taken to have known if he had seen the child that she would be morally certain to attempt to cross the line at exactly the point where she did cross it, and that it was incumbent upon him, if had seen her to take measurers to avoid an accident. The result seems to be (1) that the Railway Officials connived at the practice of the villagers in crossing the line at this point and (2) that the Engine Driver and firemen were negligent in not keeping a proper look-out on the left side of the Engine at a point where they knew that there was special danger to be apprehended from people crossing the line, both adults and children.
3. Such being my findings of fact, I have to apply the law to it as enshrined in numerous reported decisions. My findings amount to this, that the plaintiff was not a trespasser but at least a licensee, and that the Company through their servants were guilty of negligence. The question is whether that negligence gives a remedy to the plaintiff in law. After a long and instructive argument in the course of which almost every reported case which could conceivably have any bearing on this matter was cited to me, I am still in considerable doubt as to what is the real legal position. I do not think-it can be reasonably expected that a Judge of first instance in this country should go through in review all the cases which were cited to him, but rather that he should summarise the conclusions which he reaches as the result of his perusal of those cases and leave it to a Court of Appeal to put him right if he is wrong. Two considerations appear to me to be capable of being dealt with at the outset. I make no question but that if this had been a case of an adult, the Railway Company would have been entitled to rely upon a plea of contributory negligence. And there is an expression of opinion by Fry L.J. in the case of Stiefsohn v. Brook Bond & Co. 5 Times Law Reports 684, that contributory negligence can be imputed to a child. It is urged upon me that in the ease of a little girl of 7 years in this country where children arc called upon at a very early age to take a share in such out-door duties or a village household as tending cattle and the like, I might reasonably find that this child was of an age and understanding to have contributory negligence imputed to her directly. My own opinion is that the later decisions of the English Courts have left no room for such a doctrine, and I would especially refer in this connection to the words of Lord Atkinson in Cooke's case (1909) A.C. 229 . He says 'The duty of the owner of the premises owes to the persons to whom he gives permission to enter upon them must, it would appear to me, be measured by his knowledge, actual or imputed, of the habits, capacities, and propensities of those persons.' For the purposes of this case I translate that to mean that if the owners of premises like a railway line allow children to take short-cuts across the line, they must be taken to know that a child of seven is likely to cross the rails heedlessly without looking to see whether there is a dangerous object such as a train or an Engine approaching. Two other phrases which occur in the cases also, I do not think I am called upon to consider here. The one is 'allurement' and the other is 'trap'. The doctrine of 'allurement,' as I understand it, is really equivalent to justifying the presence of the injured plaintiff not merely on the landowner's premises in general but on the particular portion of it at which he received the injury complained of Lynch v. Nurdin (1841) 1 Q.B. 29 is a familiar instance, and the doctrine is further illustrated by Cooke's case itself and by the case of the Corporation of Glasgow v. Taylor (1922) 1 A.C. 44. The only thing that could possibly be described as an allurement here is the more invitation to take the short-cut by leaving the wicket-gate unlocked which gave access to the company's premises. A short-cut is in a sense an allurement to every one: but, I doubt if it is so in the sense in which that phrase is used in the cases. The other doctrine that figures prominently in the English cases is expressed in the familiar term 'a trap', which has been frequently defined as a danger which is known or ought to be known to the owner of the premises and is not known or could not reasonably have been known to the licensee. Once more, if this had not been the case of a child, it would be impossible to say that this was a trap. A Railway Company which invites persons of ordinary intelligence to cross its lines of rails cannot, I think, be supposed to have invited or licensed them not to look and see whether there was an approaching engine or train before they step on to the track. The difficulty arises in this case because the licensee was a child of tender years; and the way in which the case is put to me is this, that, if a Railway Company impliedly licenses children of tender years to cross their lines, they must exercise a degree of care sufficient to counteract the necessary heedlessness of such children. After much hesitation, I have come to the conclusion that that argument is sound and that I must accept the proposition that if a Railway Company allows children to stray over its lines, it has to take all the precautions which would be unnecessary in dealing with an adult but which are required to protect children against their own thoughtlessness. That, I think, amounts to this and I do not shrink from it that, whereas, in the case of a licensee who is an adult, the owner of the premises will only be liable if he has on those premises what the cases call 'a trap', in the case of children he will be liable not merely if he maintains a trap but if he is guilty of ordinary negligence. Or perhaps one may say that what in the case of an adult would be merely negligence, in the case of children may be regarded as a trap. If I am to put it in words, I would endeavour to phrase it thus to invite children to cross lines; of Railway over which trains run is to expose them to the danger of being run over by a passing train or engine which must be apparent to the Railway authorities and is not apparent to a child, and the scale appears to me to be turned when you have this added factor which to my mind is clearly revealed by the facts of this case, that the conduct of those in charge of the engine on this occasion was palpably negligent.
4. One last point was taken by the Railway authorities which I think I can deal with very shortly. It was suggested that if there was an invitation to children to cross the line, it could only be taken to be an invitation to them to do so when accompanied by an adult capable of looking after them, and for this proposition reliance was placed on the case of Burchell v. Hickission (1880) 50 L.J. 101.
5. That was a case of a defective staircase and I think it is obvious that totally different considerations apply on the question of license or invitation to a thing like a stair-case and a thing like a short-cut across a set of Railway lines. The case has been invoked to establish a sort of dilemma that there is either no invitation at all to a child or at most an invitation to a child when accompanied by a guardian capable of looking after it. That would seem to afford a complete dilemma, but I think the later cases negative the soundness of such a view. I also think, and I gather the same view is taken by Sir Frederick Pollock in the later editions of his Standard work on the Law of Torts, that the view that any negligence of the parent or guardian in allowing a child to get into what I may call the danger zone can be imputed to the child as something in the nature of contributory negligence, is exploded by the decision of the House of Lords, in Cooke's case.
6. On the whole, I come to the conclusion that the Railway Company are liable in damages to the plaintiff for the reasons which I have given.
7. It only remains for me in this case to fix the amount of damages. With the consent of the parties I have discussed the matter with my learned brother Ramesam whose knowledge of the conditions of life of such people is so much greater than my own and with his help and the best consideration I can give to it myself I fix the damages at Rs 3,500. That sum will be paid to the Official Trustee and the capital will be retained by him, pending the result of any appeal or pending the attainment of majority by the child. The funds will be invested at the discretion of the Official Trustee and the income will be paid by him to the child's father during the child's minority. The plaintiff will have her costs.