Charles Gordon Spencer, C.J.
1. The plaintiff-respondent is a little girl of seven years of age who was run over by a locomotive engine at Wallajah Road Railway Station and lost her right arm and her right leg. She has been awarded Rs. 3,500 damages and costs in the Court of First Instance by Coutts-Trotter, J. The Railway Company has appealed.
2. The facts are clear that the plaintiff, who lived with her father in the village of Ammur adjoining Wallajah Road Station, crossed the line in order to go to her grandmother's house and that she was returning with a basket full of grass when she was knocked down by the Engine of the Ranipet train which had left its carriages standing by the platform after uncoupling and had gone up the line eastwards, tender foremost to the points, then reversed, and was running down, head foremost, along the loop line towards the engine shed where it had to water, when the accident happened. The plaintiff herself states that on her way home she crossed by the way leading from the wicket gate near the Assistant Station Master's house, the engine ran over her, and she was injured. Of her 4th and 5th witnesses, who are merchants professing to have been eye-witnesses of the accident, P.W. 4 states :-' The girl came with a basket of grass on her head and entered the gate and was walking towards the west. She had to pass along the line a little to reach the station platform and then go to her village. When she put her leg on the line the accident happened. ' P.W. 5 states :-The girl with a basketful of grass over her head entered the gate and turned towards the west. She went and then turned to the north to go to the big platform which was sloping. The engine came and she was run over. ' The engine driver, D. W. 2, was standing on the right hand side of the engine and driving it. He, therefore, did not see the child before the accident happened. D. W. 4, a fireman on the engine, was standing on the left hand side and suddenly saw the child at a distance of four or five feet from the engine. The fact that the child's right arm and right leg were run over by the engine wheels makes it probable that she was knocked down just as she was stepping on to the line from the south and that she: was hit on the right side by the engine. This accords with the statements of the eye-witnesses who profess to have seen the accident and with her own account. There is evidence that people living in the neighbourhood were in the habit of crossing the railway line first over the overbridge and then from the platform crossing the station-yard in a direction which led to a wicket gate beside the Assistant Station-master's house. There is no evidence that there was a worn foot-path in this direction, but there is no reason to doubt the statements of the witnesses that this short-cut was being used. The driver of the engine and a fireman (D. W. 4) stated that the whistle was blown when the engine was uncoupled from the train and again when it started down the loop line to go westwards. The plaintiff said that no whistle was blown. P.W. 3, the Branch Postmaster, says that no warning was given. The next witness was not asked. The 5th witness says he did not hear any whistle. The Station-master (D. W. 5) does not remember whether it was blown. The learned Judge rightly observed that the witnesses cannot be expected to be able to speak from memory as to whether the usual formality of blowing the whistle was observed on that day unless there was something to call their attention to the fact.
3. The existence of a wicket gate close to the Assistant Station-master's house has been made much of. There is a notice board warning persons not to use that crossing, but whether it was in existence before the accident happened has been questioned. I do not consider that the existence of the wicket gate is a material circumstance in the case. Even if it had been kept locked, as suggested by the learned Judge in the Court below, it would have been easy for children like the plaintiff to have slipped through the wire fencing that enclosed the station-yard.
4. On the evidence I find that the proximate cause, the causa causans as it is called, of the accident was that the plaintiff stepped on the railway line in front of a moving engine and that she was guilty of negligence in not keeping a sharper look-out for passing trains when she was crossing the line at an unauthorised place of crossing. As she was carrying a load of grass on her head, it is likely that she could not readily turn her head to the right and left and look up and down the line and see if anything was coming. Though she was capable of appreciating danger and was old enough to have a sense of circumspection, she did not use it owing to the heedlessness of youth or the burden on her head. The accident happened in broad daylight. The engine was an obvious danger, capable of being perceived even by a child of tender years. She must have seen the train standing by the platform without its engine if she had looked in front of her. The fact that the engine had gone to the east was no guarantee that it would not return along the line which she was about to cross. The danger of being run over by a passing engine when crossing the railway lines imposes a necessity for the utmost caution on all persons walking on or near the track. Persons who cross an open railway line at an unrecognised crossing do so at their own peril. The plaintiff, if not a trespasser, was at least a licensee; and, where a licensee is concerned, the owner of the premises is not liable for damage caused by the negligence of the licensee, provided that he does not place any trap in the way of those who come upon his premises. In the present case there was no trap, no allurement and no invitation. It has been suggested that leaving the wicket gate unlocked was an invitation to people wanting to go to the other side of the line to take the short cut instead of crossing by the level crossings further down on the east and west. The learned Judge on the Original Side held that this short-cut was not an ' allurement ' in the sense in which the phrase has been used in reported cases where negligence has been alleged. I have no doubt that the existence of a shortcut cannot itself be treated as an allurement. Otherwise, people might make short-cuts across the railway at any point, and the railway would always be liable for accidents occurring to persons using the short-cuts, and no measure to prevent such accidents would be effective short of guarding the line at short intervals for its entire length, or putting up some impassable barrier. In Cooke's case (1909) AC 229 it was not the gap in the hedge but the turn-table which was the allurement, as it was used by the the youth of Navan as a kind of glorified merry-go-round (vide Lord Macnaghten's Judgment).
5. The decision of this case in favour of the plaintiff seems to be based upon two errors. In the first place, the learned Judge thought that, if a proper look-out had been kept on the left side of the engine, this accident could have been avoided either by blowing the whistle again, or by stopping, the engine as soon as it got near the child. Secondly, the learned Judge was of opinion that what would be merely negligence in the case of an adult, in the case of children might be regarded as a trap and that the conduct of the railway officials was negligent in inviting children to cross lines of railway over which the Company's trains run.
6. On the first point there is no evidence in this case as to the distance within which an engine going at between five and ten miles an hour could have been brought to a standstill. The fireman, D. W. 3, first saw the child when she was four or five feet off. It is not likely that the engine could have been stopped within that distance. Unlike a motor-car, the course of a train cannot be altered to avoid running over pedestrians. Nor has it been proved that a proper look-out was not kept by the engine driver who was on the right side of the engine.
7. The respondent's pleader argues that the engine driver, knowing that the track between the wicket gate and the platform was being used by the public, should have kept a special look-out when they came near that spot. In Davey v. London and South Western Railway Company 12 QBD 71 (a most instructive case) Brett, M. R. laid down the law thus in a case where the plaintiff claimed damages from a Railway Company for negligence. He said: ' In such an action as this the burden of proof lies entirely upon the plaintiff. There are two things for him to establish, one affirmative and the other negative. It is for the plaintiff to show that the accident which happened to him was caused by a negligent act of the defendants, or of those for whose negligent acts the defendants are liable, and that that accident was produced as between him and the defendants solely by the defendants' negligence in this sense, that he himself was not guilty of any negligence which contributed to the accident, yet if the plaintiff also was guilty of negligence which contributed to the accident, so that the accident was the result of the joint negligence of the plaintiff and of the defendants, then the plaintiff cannot recover, it being understood that, if the defendants' servants could by reasonable care have avoided injuring the plaintiff although he was negligent, then the negligence of the plaintiff would not contribute to the accident.'
8. This imposes a duty upon defendants to do all in their power to avoid an accident in cases where one is imminent owing to the negligence of the plaintiff. This point is well brought out in the judgments of the Court of Appeal in Gaffney v. The Dublin United Tramways Company (1916) 2 IR 472. In other words, it is the party who is last negligent who is made responsible for an accident arising from the negligence of both parties.
9. In Davey's case (12QBD 71) Br L.J., observed:-It was broad daylight, and as soon as he had entered the wicket gate-ad he been a sensible man-e would have looked up and down the line to see if there was a train coming either way. A train was in fact so close to him that he was only able to cross fifteen feet before he found himself between its buffers, and yet he never took the trouble to look and see if the train was coming. Now is it open to any reasonable mind to draw the inference that that accident was caused by anything except the gross negligence of the man who never looked at a train which was within a few feet of him ?'
10. It seems to me that every reasonable mind which has before it the facts of the present case must agree that it was the gross negligence of the plaintiff which led her to step on the permanent way in front of an approaching engine without first assuring herself by looking to the right and the left that there was no possibility of being run over.
11. The facts of the present case do not support the inference that the Railway Company's servants were negligent. Supposing the driver had seen the plaintiff coming from the wicket gate towards the line, there was no reason for him to anticipate that she would attempt the very rash act of crossing in front of the engine. Every day drivers of cars and carriages seeing foot passengers on the public road proceed on the assumption that they will act rationally and not commit the imprudence of running in front of a car or carriage. It would not be reasonable to compel drivers to form a mental estimate as to the age and capacity of taking care of themselves of every one of the pedestrians that they may meet in their way through traffic and to adjust their speed accordingly, though they would naturally proceed slowly past a school or playground where children are likely to congregate, as children are notoriously careless owing to their inexperience.
12. In Burchell v. Hickison 50 LJQB 101 an action was brought on account or damage sustained by a boy of four years of age who fell through a gap in railings leading up steps to a house. It was held that there was no invitation to a person of the plaintiff's age to use those steps unless he was in charge of some older person who could take care of him, and if he was in charge of others, then there was no concealed danger. This gave rise to a dilemma. Coutts-Trotter, J. seems to have been of opinion that this case decided in 1880 no longer represented sound law and that it had been exploded by the decision of the House of Lords in Cooke v. Midland Great Western Railway of Ireland (1909) AC 229. That was a case of a turn-table which formed a great attraction to children living in the neighbourhood to play with. But it was a dangerous object when unlocked because, if used without care, it was liable to crush the user, as it did to the boy Cooke. In Jenkins v. Great Western Railway (1912) 1 KB 525 a child of two and a half years was run over by an express train having got on the main line and it was held by the learned Judges that there was no invitation to trespass on the main line of the railway, although children had been allowed to play on a pile of sleepers close to dwelling-houses on the side of the line. The sleepers had not been properly fenced off so as to prevent children coming and playing upon them, and therefore it was held that they were licensees so far as the timber pile existed, but there was no invitation or leave to go on to the main line where the accident took place. It was considered that to hold that there was an invitation to cross the railway line would be an undue extension of the doctrine in Cooke's case (1909) AC 229, the ground of that decision being that there was leave and license to play with a turn-table which was a dangerous machine and that it was because the person injured availed himself of that leave and license he was injured. If the railway staff had left an unattended locomotive with steam up standing in the station-yard for boys to play with, I have no doubt that that would have constituted an allurement and the Company would have been responsible for the consequences. But I cannot agree that the failure of the Railway Company to prevent passengers from crossing the line through the wicket gate opposite the platform at the Wallajah Road Station was an invitation or allurement either to adults or children to cross the railway lines without proper circumspection. In Fairman v. Perpetual Investment Building Society (1923) AC 74 the House of Lords recently approved of the decision of the Court of Appeal in Latham v. Johnson (1912) 1 KB 398 as containing a concise and accurate expression of well-known principles of law. In the latter decision Burchell v. Hickison 50 LJQB 101 and Lottery v. Walker (1911) AC 10 are referred to as still being good law. Latham was a child hurt by playing with paving stones on unfenced waste land. As there was no allurement, nor trap, nor invitation, nor dangerous object, it was held that the defendants were not liable for the injuries caused to the plaintiff's hand.
13. The case of Glasgow Corporation v. Taylor (1922) 1 AC 44, where a child of tender years was attracted by belladonna berries grown in a public garden which were a danger to young children unable to take care of themselves within the knowledge of those who put such plants in a public place, and the case of Lovery v. Walker (1911) AC 10, where a savage horse was placed in a field over which the public had a license to walk are easily distinguishable both from the facts in Cooke's case (1909) AC 229 and from the facts of the present case, the former being a case of a trap and allurement to children using a public right, and the second being a dangerous thing placed in the way of licensees, who did not know it to be dangerous as horses in general are not dangerous animals. The distinction between those cases and the present is that the plaintiff in the present case was not using a right of way across the rails when she was injured and that everybody knows an engine to be likely to hurt those who come in contact with it. In Hughes v. Macfie and Abbott v. Macfie 2 H & C 744 where a boy of tender age meddled with the flap of a cellar, which was placed so as to lean almost upright against a wall, judgment was given for the defendants, although it was stated that, if an adult passer-by had accidentally and without carelessness pulled the flap over and been hurt, he might have successfully maintained an action for damages arising through negligence to which he did not contribute.
14. In Singleton v. Eastern Counties Railway Company 7 C BNS 287 where a child of three and a half years of age who got on to a parapet of a bridge and had his leg cut off by a passing train, the action was dismissed, in spite of the fact that the driver made no attempt to stop the train, as it was held that the plaintiff was wrongfully upon the railway, and though he was only a child of tender age, the accident must have been due to his negligence or the negligence of his parents and through no fault of the Railway Company.
15. On the finding that the accident was due to the plaintiff's want of care and that the Railway Company and their officials were not guilty of negligence, the Appeal must be allowed and the suit dismissed. Under these circumstances the parties will bear their own costs.
16. While absolving the Railway Company from all legal liability for this sad accident, I consider that the pitiable plight of this unfortunate girl mutilated by collision with one of the Company's engines deserves the sympathetic consideration of the Agent of the Company and I rejoice to hear from the appellant's counsel Mr. Mockett that the Company have decided to give her some form of compassionate pension or a gratuity of a substantial amount.
Srinivasa Aiyangar, J.
17. This is a most unfortunate case, for the necessary result of the conclusions I have felt bound to arrive at on the questions of fact and law argued before us in this appeal would be to deprive a little girl aged about 8 years of the benefit of the decree granted in her favour against the appellant Railway Company by Mr. Justice Courts-Trotter as he then was. In the suit instituted on behalf of the minor girl by her father as her next friend, the claim was for damages in respect of the injuries caused to her by a engine belonging to the appellant Railway Administration, running over her, as the result of which both her right hand and right leg had to be amputated. But however much one's heart may go out in sympathy for the sufferings of the little plaintiff and more especially for the years of crippled and unhappy life awaiting her in the future, I do not see how I can fail to give effect to my conclusions. Lord Justice Farwell observed in the case of Latham v. R. Johnson and Nephew Limited (1912) 1 KB 398 :- ' We must be careful not to allow our sympathy with the infant plaintiff to affect our judgment : sentiment is a dangerous will-of-the-wisp to take as a guide in the search for legal principles. ' Nevertheless, one cannot but regret such a consequence following on one's conclusions.
18. Except in cases where the injuries are caused as the result of a wanton attack on the person of the plaintiff, in cases of claims for damages for personal injuries the cause of action generally is negligence; that is to say, the charge against the defendant is to the effect that though, the defendant was, at the time when the accident happened which caused the injury, doing something not in itself unlawful he was guilty of negligence in the doing of it, and that such negligence was the proximate cause of the injury. But what is negligence Whether any particular act or omission constitutes negligence would have to be decided having regard to the person injured, the manner in which the injury was occasioned and the time, place and circumstances in each case. Negligence is the failure to exercise proper care. But what is proper care depends on the time, place and circumstances.
19. It is once over again the apothesis of the law, the ideal man of ordinary prudence. What this ideal man of ordinary prudence would have done or omitted at the particular time and place and in the circumstances is the standard and measure of proper care and whenever and wherever the act or omission of the defendant falls short of this standard or measure then, and there is negligence. It seems to me that the classification of the injured into trespassers, bare licensees, licensees, invitees, servants and so on has no more fundamental basis than the repeated application of this standard or measure to the varying circumstances, under which the injured persons came to be at the particular place and at the particular time. Thus before the plaintiff in such an action can be entitled to a verdict in her favour, it has to be proved that the appellant Railway Company in having the engine driven at the particular time and place and in the circumstances was guilty of negligence and that such negligence was the proximate cause of the injuries sustained by the plaintiff.
20. For the determination of these questions, the first thing to be considered is whether the plaintiff was at the time and place a trespasser or a licensee. It is not, however, as if that a licensee as such has got any more rights so to say than a trespasser but the question becomes of importance only with regard to the other question, the main question in the case, whether or not the driving of the engine was negligent. For this purpose a trespasser is merely an unexpected visitor or, to put it a little more clearly, one whose visit to the place at the time and in the circumstances could not have been foreseen by a man of ordinary prudence. Similarly for this purpose the licensee is merely a person or a member of a class whose presence at the time and about the place should in the circumstances have been foreseen and provided for by a man of ordinary prudence. In this sense then, was the plaintiff at the time and place a trespasser or a licensee It seems to me that to this question there can on this evidence be only one answer. There is consider- able independent testimony, which I have absolutely no reason to doubt or refuse to accept, that the villagers of Ammur have been for a long time allowed by the Railway authorities without any effective objection, to cross the Ranipet line and pass through the wicket gate both on their way from the part of the main village on the northern side of the line to the part of the village on the southern side of the line and back again. The following extract from the evidence of Rupert Johnson examined as the second witness for the defence puts it beyond all doubt:
Question :-You keep a special look-out when you come near the wicket gate to see that the passengers do not cross the line ?
21. This is conclusive evidence as regards the knowledge and consciousness on the part, at any rate, of the most important servant of the Railway Company concerned, namely the engine driver. It is an admission that persons passing through the wicket gate were in the habit of crossing the line at that point. It is also an admission for the consequent necessity on the part of the Railway servants to keep a special look-out at the place. If therefore the presence of persons crossing the line at the place was or must have been anticipated, it follows that the plea of the Railway Company that the plaintiff was a trespasser fails or at any rate loses its point. The degree of prudence therefore incumbent on the Railway Company, namely, the need for special look-out at that point in the line having thus been admitted, it becomes unnecessary to discuss further that aspect of the case. But it is one thing to say that generally persons were suffered by the Railway authorities to cross and re-cross the line at the particular point and another thing to say that such sufferance amounted also to a similar permission by the Railway Company in favour of infants of tender years unable to take care of themselves or incapable of avoiding dangers necessarily incidental to the place. I cannot possibly suppose that any implied license by the Railway Company could extend to such infants. But on the evidence I am unable to hold that the plaintiff, though stated to be only seven years of age, was an infant unable to take care of herself or of avoiding dangers incidental to the place. It was not the first occasion on which she was there crossing and re-crossing the line and as a fact it is clear she had been doing so alone by herself for quite a considerable time previously. Her parents would seem not only to have allowed her to do so but to have sent her on errands on which she was crossing and re-crossing the railway line at the point.
22. It follows necessarily from all this that the plaintiff had sufficiently developed in her the faculty of circumspection and the capacity of taking care of herself even in such somewhat dangerous surroundings. If, on the other hand, the contention on behalf of the plaintiff should be that she had not attained such faculty and such capacity the necessary result of it would obviously be that in such a case the Railway Company could not be deemed to have included in any such implied license a person of such tender years. This, in passing, I may state is the dilemma referred to by Lord Justice Hamilton at page 414 in the course of his judgment in Latham's case (1912) 1 KB 398. I must therefore find that the plaintiff was not a trespasser so-called but was as found by the learned Judge in the Trial Court a person whose presence in or about the place was or must have been anticipated by those in charge of the engine.
23. I shall now proceed to the question whether or not the negligence charged has been established. I gather that four acts of negligence have been so charged against the Railway Company. In para. 6 of the plaint there seems to be in the word ' had he slowly backed ' a suggestion that the engine was at the time of the accident being driven not slowly but fast. This was not even sought to be proved. In the same paragraph the word ' backed ' would seem to indicate that the train was at the time of the accident tender foremost. I do not see how this matters. Further the evidence in the case undoubtedly points to this allegation being correct. In the same paragraph 6 of the plaint another charge made is that the whistle was not blown. This charge is not sufficiently particular. If the reference is to the practice of sounding the whistle of the engine when it is about to start from the east on its journey to the engine-shed, towards the west, I must say that the evidence with regard thereto is discrepant and not by any means satisfactory. For one person that heard the whistle a hundred persons even in or about the place might not have attended to it and therefore not heard it and it requires very strong and cogent evidence to establish a negative. Further, I am unable to appreciate how a whistle by the engine some hundred yards off would have averted the accident.
24. The charge in para. 7 of the plaint is substantially to the effect that though the Railway Company had reason to know that the public was in the habit of crossing the line at the point, proper safeguards were not adopted. The extract from the evidence of the engine driver which I have already reproduced above goes to show the need for and the practice of ' special look-out ' by those in charge of the engine while passing near the wicket gate. There is absolutely no evidence whatever of such special look-out having been kept either by the driver or any other person in, or in charge of, the engine. No one says that a special look-out was kept by any person on the engine. The driver was on the right side, and if he was on the look-out from a place sufficiently far off on the east from the wicket gate, I fail to see how he could have failed to notice the plaintiff and assuming he was unable to see who was passing on the left side, there is no evidence whatever as to what look-out was kept on the left side of the engine. I hold therefore agreeing entirely in this respect also with the learned Trial Judge that the special look-out spoken to by the engine driver has not been proved and that therefore the appellant company was guilty of negligence on the occasion.
25. Assuming however that there was this negligence on the part of those who were in charge of the engine at the time of the accident, it does not necessarily follow that such negligence was the sole or even the proximate cause of the accident.
26. The theory of contributory negligence is not a special or separate branch of the law nor is the theory which relates to what may be called the further or secondary negligence of the defendant. They are all but different aspects of the one sole question in the case ' What was the proximate or effective cause of the accident ' If the defendant was negligent, still if the plaintiff could have by the use of ordinary prudence avoided the accident the plaintiff is held not entitled to recover, not because he was also negligent but only because the proximate cause of the accident should be held in such cases to have been not the primary negligence of the defendant but really the negligence on the part of the plaintiff which was what largely contributed to the result. Similarly, if in spite of the negligence or, as it is called, the contributory negligence of the plaintiff, the defendant could even then by the exercise of ordinary care have avoided the accident and injury, the plaintiff is held entitled to recover not because he was not negligent but only because the negligence that proximately caused the injury was the negligence not of the plaintiff but of the defendant. The whole thing therefore is a problem in causation and Courts of law are allowed and required to do their best to piece out the events and arrive at a conclusion with regard to the proximate or as it may be otherwise called the effective cause of the accident or injury. It follows from this that assuming that the appellant company was through the persons in charge of the engine at the time and place of the accident guilty of the negligence found against them, did that negligence alone cause the accident or was there anything that the plaintiff did or failed to do on the occasion which was really the proximate and effective cause of it. What happened then in this case It may be that when the plaintiff entered through the wicket gate and was about to turn to the left to pass alongside the rails she might not have noticed the engine which might have been still at some distance to the east. The plaintiff after going some distance alongside the line towards the west, turned to her right again with the object of crossing the line and either while she was so turning to cross the line or as she had taken just a step with a view to cross, she was according to the evidence knocked down by the engine. The fact that her right hand and right leg alone were injured would seem to show that the impact of the engine was on the right side and was such as to throw the whole of the left side and also the trunk of the body beyond the line of the left wheels of the engine. It seems to me that this could have happened only if the impact of the engine against the plaintiff was just as she was turning to cross, her left side still not quite turned. It is only in such a case that the impact of the engine would have served to throw the left side and the trunk outside the line of the wheels while the right leg and the right hand would fall just under the line of the wheels. From this it follows that while she was in the act of turning, the engine was not on the rails directly in front of her but must have been only about 5 or 6 feet off. 1 take it that even in the case of an infant of about 7 years, the ordinary instinct of self-preservation would have impelled her to withdraw, if when about to turn she had noticed the engine. I have therefore to conclude that she did not look to the right before crossing. It seems to me that it was not even necessary to look to the right because such a huge thing as an engine at a distance of 5 or 6 feet could not possibly have failed to draw her attention to it. It is also strange that she should not have either heard the noise of the approaching engine or perceived the vibration caused by its nearer and nearer approach. I am therefore led to conclude that the plaintiff must have been on the occasion either very absent-minded or her child-nature so wholly, absorbed in something else as to leave no attention available for hearing the noise or perceiving the vibration or see the form of the approaching engine. This was not the conduct of a person of ordinary prudence. No person of ordinary prudence would especially while in attempting to cross the railway line fail to look about to see whether any train was approaching. But if she was not capable of circumspection or taking care of herself, she ought not to have trusted herself there or have been allowed by her reckless parents to cross and re-cross the line without some care taken. If she was capable of circumspection or of taking care of herself, she failed to exercise ordinary prudence before turning to cross the line. Her failure to realise that the engine was approaching could only be ascribed to carelessness on her part. If she had exercised such ordinary care, the accident would have been averted or avoided in spite of the negligence of the Railway Company.
27. A further argument was advanced to us on behalf of the plaintiff, that, assuming that she was negligent, even then when the fireman noticed her and cried out, the engine should have been stopped and the injury averted. This argument was based on the principle of what is called ' The Donkey Case,' Davies v. Mann (1842) 10 MW 546. I do not think it could possibly have been managed. The engine must have been within a few feet of the plaintiff and in any case there is absolutely no evidence on which I could hold that it was possible to bring the engine to a dead-stop at such short notice and distance.
28. I have therefore come to the conclusion and feel constrained to hold that as the injury could have been avoided by the plaintiff herself by the exercise of ordinary care on her part and was brought about by her failure and omission to exercise some circumspection, her own negligence was the proximate or effective cause of the accident.
29. Reviewing the facts of this case, I almost wish that the law were that in such a case the damages should be apportioned between both the parties held to have been negligent as they do in Admiralty cases; but as observed by Lord Birkenhead in a recent case, Admiralty Commissioners v. S.S. Volute (1922) 1 AC 129 : ' In a Court of Common Law the plaintiff has no remedy if his negligence in any degree contributed to the accident.' In the result it follows that the plaintiff cannot recover.
30. It only remains for me briefly to examine the grounds on which the learned Judge who tried the case came to a different conclusion.
31. Summing up his findings the learned Judge observes as follows :-' I entertain no manner of doubt that if a proper look-out 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 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 entirely agree with this observation of the learned Judge. But he has not paused for a moment to consider what, assuming this negligence on the part of the Railway Company, was the conduct of the plaintiff and whether her negligence such as it was, was not the more proximate cause of the accident. He brushed aside that whole aspect of the case holding that a child of 7 could not possibly be guilty of contributory negligence. It was however at the same time assumed by the learned Judge that children, including in that expression children unable to take care of themselves, should also be presumed to be included in the implied license given by the Railway Company. Though there was evidence of the plaintiff having been crossing the line, there is absolutely no evidence of the fact that this at any time came to the notice of the servants of the Railway Company and that they nevertheless permitted the plaintiff to cross knowing that she was still so young as not to be able to take care of herself. In the case of an implied license, the circumstances have to be looked to for the purpose of determining the terms of such implied license. In the case of Jenkins v. The Great Western Railway (1912) 1 KB 525 the learned Judges of the Court of Appeal refused to infer from the circumstances a license from the Railway Company for a child of tender years to go upon the main line of a railway, even though the jury found a license for such a child to cross the fence and go and play on stacks of timber close by. And to the same effect is the judgment of the Court of Appeal in the case of Latham v. Johnson and Nephew, Limited (1912) 1 KB 398. There is really noground for the supposition made by the learned Judge that such case as Stiefsohn v. Broohebond Co. 5 Tim LR 684 was no longer good law. There was nothing in Cooke's case (1909) AC 229 or in any of the later cases to question the principle on which that case was decided. In that case Lord Justice Fry held that a child of 7 years even in England could be guilty of such negligence as to disentitle it to damages. The learned Judge says the danger was evident even to a child. I fail to see how it could be said that the danger of a running engine would not be obvious to a child of even 7 years in this country.
32. The dilemma I referred to was that if a child should be too young to take care of itself no license could be implied in its favour and if it were not too young to take care of itself, it would be capable of contributory negligence. It was in reference to this that the learned Judge observes as follows : ' That would seem to afford a complete dilemma but the later cases negative the soundness of such a view.' The later cases referred to by the learned Judge are the Cooke's case (1909) AC 229 and Taylor's case (1922) 1 AC 44. In another place referring to the doctrine of contributory negligence by a child on which Lord Justice Fry based his judgment in the case of Stiefsohn v. Brooke-bond Company 5 Tim LR 684 the learned Judge observes that the later decisions of English Courts have left no room for such a doctrine. The learned Judge therefore, it is clear, proceeded on the assumption that Cooke's case (1909) AC 229 and Taylor's case (1922) 1 AC 44 had the effect of reversing all the earlier decisions of the English Courts with regard to the possibility of a child being guilty of contributory negligence. If I may respectfully say so, it is this erroneous supposition that led the learned Judge after much hesitation, as he himself says, to arrive at the decision at which he did. It seems to me that these cases did nothing of the kind, but merely proceeded on a principle fairly established for k long time in English Law of the responsibility in law of a person leaving unguarded something intrinsically dangerous, something intrinsically alluring or tempting to child-nature at a place where as a person of ordinary prudence he must have had reason to believe that children were frequenting. In other words, those two cases proceeded and are clearly based on the doctrine of what is called allurement.
33. Allurement is an irresistible call to the emotions which for the time if it does not paralyse at any rate overwhelms the faculty of reasoning. I for my part do not see why the doctrine of allurement should be confined only to dogs and children and not be capable of extension even to adults if on the facts a proper case should arrive at any time. In Latham's case (1912) 1 KB 398 Lord Justice Hamilton as he then was at page 418 says this : ' Of Cooke's case (1909) AC 229 the following things are clear. Their Lordships declared no new law and overruled no old cases.' It is remarkable that in the case of Fairman v. Perpetual Investment Building Society (1922) AC 74 Lord Buckmaster who dissented from a majority of the House of Lords in that case has stated as follows at p. 80 :-' Now the liability in tort of the owner of premises to those who use them is carefully discussed in the case of Latham v. R. Johnson and Nephew (1912) 1 KB 398 and the statement of law there is a concise and accurate expression of well-known principles.' Thus, it is clear that the decision in Latham's case (1912) 1 KB 398 in which Cooke's case (1909) AC 229 was referred to as an extreme case, was approved of by the House of Lords. It therefore follows that the learned Judge was wrong in regarding that in Cooke's case (1909) AC 229 the House of Lords overruled all the earlier cases. If then it is clear that Cooke's case (1909) AC 229 and Taylor's case (1922) 1 AC proceeded on the doctrine of allurement and not on any principle of law which had the effect of overruling all the earlier cases in English Reports which recognised the possibility of contributory negligence on the part of children, it is significant that the learned Judge himself considers that the doctrine of allurement could not possibly apply to the present case. He says : ' The only thing that could possibly be described as an allurement here is the mere 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 learned Judge was obviously disinclined to regard the engine as a trap and finally concludes by formulating what he considers to be the law in the following words : ' 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.' I am unable to understand how from regarding the girl who is the plaintiff in this action as a mere licensee, the learned Judge insensibly passed on to regard her and refer to her as an invitee. By no stretch of English language could the plaintiff in this case be regarded as an invitee, and when the learned Judge speaks of an engine as a danger not apparent to a child, I must take it that he means in the present case he regards the plaintiff as a child to whom a running engine was not an obvious danger. I regret it is not possible to agree with the learned Judge when he says that. But if indeed the plaintiff was so young as not to realise that a running engine was an obvious danger, we are only relegated back to the dilemma and compelled to hold that the plaintiff had no right whatever to be there and that her parents had no right whatever to allow her to be there. For, adopting words which were used by the learned Judge himself in another place we might say that the appellant Railway Administration while allowing persons of ordinary intelligence to cross a line of rails cannot be supposed to have licensed them not to look and see whether there was an approaching engine or train before they stepped on the track.
34. For these reasons I have reluctantly come to the conclusion that the decree in favour of the plaintiff-respondent could not be supported and I therefore agree with my Lord Chief Justice that the appeal should be allowed. As I have also found negligence on the part of the Railway Administration, I agree the more readily, that there should be no costs allowed to either party.
35. In conclusion I feel bound to state that though I have felt compelled to uphold the law as I understand it and find it and allow the appeal, I agree entirely with the learned Officiating Chief Justice that it is eminently a case in which the appellant Railway Administration in consideration of the infant plaintiff crippled and maimed for life by the accident, would now that their legal liability has been declared against, see their way out of common humanity to make suitable provision for her. In the case of Stiefsohn v. Brookebond Company 5 Tim. L.R. 684 the Counsel on behalf of the defendant Company stated that irrespective of the decision of the Court the defendants would compensate the child for the injuries sustained, and I only trust that the learned Counsel in this case for the Railway Company would be in a position to make a similar announcement.