Coutts Trotter, J.
1. This is an action by Mr. Edmund Elmar Mack, a Member of the Indian Civil Service, against the Madras and Southern Mahratta Railway Co., Ltd., for damages for personal injury sustained by him on the early morning of the 30th August, 1921 and alleged to be due to the negligence of the defendant Railway Company in keeping an unprotected and unlighted pit on the platform of Nellore Station. At that time Mr. Mack was stationed at Nellore and had been instructed to join a survey party at Bellary. On the-night of the 29th August he dined at the house of Mr. Bateman, Deputy Director of Survey, at Nellore, and the party consisted of Mr. Bateman and Mrs. Bateman, Miss Baxely, Mr. Lewis, District Superintendent of Police, Mr. Ramamurthi, the Acting Collector and the plaintiff. m The train by which the plaintiff was to go to Madras en route for Bellary was due to arrive at 2-15 a.m. and depart 8 minutes later. At about 1-30 Mr. Lewis, the plaintiff and the two ladies left in a jutka to go to the station, the plaintiff to catch the train and the others to see him off, and they arrived at the station a few 'minutes after 2 o'clock. When they arrived at the station, the ladies stayed below, and the plaintiff and Mr. Lewis went upstairs to the platform. The plaintiff's luggage was on the platform in charge of a servant, and it seems probable that the servant had a hurricane-lantern with him. If he had, I think it is quite clear that its light afforded no assistance to the plaintiff in the events which followed. The account that the plaintiff has given in the box is that he wanted to relieve himself and that he had an idea that somewhere at the north end of the platform there was a gentleman's urinal. He says that he had noticed it before when he had been on the platform but had never gone into it but had a general idea where it was situated. He says that all the lamps on the platform were extinguished and that it was in complete darkness. When he got to where he thought the urinal was, he left Mr. Lewis and walked towards it, and then he says that his foot struck the parapet of the urinal, that he put his left foot on the parapet which at this point was about a foot high or a little more, then he felt about with his right foot for a step or something to lead him down to it, and that he then fell vertically and landed on his right foot. He fell as we know from the photographs and plans a sheer drop of 6 feet. He was unable to use his right foot and called out to Mr. Lewis after hobbling up the stairs which he found on his left hand side. Mr. Lewis came towards the sound of his voice and he helped him along the platform till they got a chair for him in which he sat until the train came in rather more than two hours late. Mr. Lewis entirely corroborates the plaintiff's evidence. He says that the plaintiff said to him when he got to the platform that he wanted to make water and that he walked towards the back wall of the platform on which Mr. Lewis says there were no lights. He goes on to say that the plaintiff seemed to get up on something and that he saw his figure dimly silhoutted against the wall which he was facing and then suddenly disappear from view. Mr. Lewis says that he called out, 'Mack, where are you?' and walked towards the place where he saw him disappear, that he found the plaintiff hopping up the stairs on one foot and that then by lending his shoulder to lean on he helped him down the platform still hopping on one foot to somewhere near the waiting room where he got a chair for him and placed him on it. Mr. Lewis is as positive as the plaintiff that none of the lights on the platform were lighted, and adds that there was no moon and that he was only able dimly to see the plaintiff's figure by a little starlight. These two gentlemen are the only people who can speak as to what actually happened, and on their evidence and the known facts as to the state of the platform as revealed by the drawings and plans, I have to determine whether a prima facie case of liability has been made out. I have no doubt whatever from the photographs and above all from the drawing put in evidence by the Railway Company that this latrine was a most dangerous place, and ought either to have been protected by a wall at least 3 or 4 feet high or ought to have been lighted by lamp No. 7 on the platform which stands in front of it. It is useless to spend words on such a subject. The sketch speaks for itself.
2. I, now turn to the written statement, and on the question of liability as distinguished from the question of the amount of liability, it appears to raise the following contentions. Paragraph 3 appears to suggest that it was the duty of the plaintiff or any other passengers to betake themselves to the waiting room forthwith and there remain until the train by which they were travelling should come in however late, and that to walk up the platform in its unlighted state affords good ground for a plea of contributory negligence which has been set up in this case. Paragraph 6 suggests that the plaintiff was imprudent and careless in finding himself in the neighbourhood of the urinal except he were attempting to use it, and that again is alleged as contributory negligence. I have the plaintiff's evidence which I believe, that he found himself there because he did desire to use it, though it may be that at the time they put in this plea the defendant Railway Company were not aware of this, because it is not stated in the plaintiff's first letter of complaint dated the 17th September that he was endeavouring to enter the urinal. But I desire to say that in my opinion that would afford No. defence whatever to this action, even if it were a fact. I do not think that any Railway Company is entitled to set traps upon its premises and to keep the the place in total darkness and take the attitude that passengers who are waiting for trains which are late walk up and down the platform, when waiting for the train, at their own peril. The remaining pleas in the written statement, if I understand them aright go rather to the question of the amount of damages than to the question of liability.
3. The Railway Company called two witnesses, Chinnaswami Naidu, the Station Master, and Raghaviah, the Ticket Collector. The only material thing they say is that lights Nos. 3 and 5, one opposite to the third class waiting room and one opposite to the main station building, were alight at the time of the accident. The ticket collector's evidence is worthless, as he merely says that these lights were lighted on this night because it was the rule generally that they should be lighted. The Station Master is obviously unworthy of belief, because his evidence is that all the 9 lamps on the platform should be kept lighted 25 minutes before the time when the train is expected, and kept alight till its departure and he goes on to say that it was not until 2-30 a.m. that he was informed from up the line that the train was running late. The obvious suggestion is that all the lights were on at the time of the accident. That is now nobody's case, and I do not for a moment believe it. Further discrediting as I do the evidence of these two witnesses, I accept the statement of the plaintiff and Mr. Lewis that there was no light on the platform, and I do not believe that the defendant's witnesses were speaking the truth when they said that lights Nos. 3 and 5 were lighted. Even if they were, it seems quite clear that they could not have thrown any appreciable light on the entrance to the latrine.
4. I now follow the history of the plaintiff. He managed to get into the train to Madras at about 4-30 a.m. with the help of his servant. He says he suffered great pain during the journey, that when he arrived at Madras he was put in a chair and wheeled in a trolley to the waiting room where he remained all day waiting for his train to Bellary. He was helped into the train to Bellary and arrived there on the 31st August. If: is quite clear that at that time he thought that he was suffering from nothing worse than a sprained ankle which however painful would cure itself fairly rapidly and that opinion Was shared by Dr. Verghese whom he saw 2 or 3 days after he arrived at Bellary because he found his foot no better. Dr. Verghese as I see, appears to have thought like the plaintiff that it was nothing worse than a severe sprain and so he put the foot in plaster of paris and got the plaintiff crutches from the hospital which he advised him to use. The plaintiff went through his survey course with the help of hired conveyances and the use of crutches when his foot got tired, and on the 1st December he finished his course and came back to Madras, and then he saw Col. Symons. Col. Symons examined him on that date and found a swelling on the outer side, of the right ankle which gave pain on pressure and in his own words was 'bony hard.' Col. Symons at once had him X-rayed, and the skiagraphs were produced before me. They conclusively show, as Col. Symons explained, that there had been a fracture of the small bone of the ankle, that the ligaments of the heel had been torn and that new bone had been thrown out from the position of the injury. Col. Symons has seen him comparatively recently again and finds that the trouble caused by the fracture is now over but that torn ligaments are not yet completely restored to their normal state and that he is unable to say when they will be completely restored.
5. The plaintiff did not make any claim against the Railway Company until the 17th September from motives which one can readily understand. Gentlemen in the plaintiff's position are naturally reluctant to make claims for injuries which they do not anticipate to be serious. Until the 1st December he was ignorant that he had suffered from anything worse than a severely sprained ankle, and when he wrote in September he only claimed on that footing. The letter of the 17th September is now complained of by the Railway Company as not apprising them of the true facts, namely that the plaintiff was endeavouring to reach the urinal over the parapet of which he fell. The exact words he used in his letter are these : 'I was walking up the platform the greater part of which was in total darkness with Mr. E.H.H. Lewis, Acting District Superintendent of Police, who was seeing me off. I suddenly fell six feet sheer over the side of an unprotected latrine which is set in the platform and sustained a badly sprained ankle.' That letter was acknowledged by the Agent of the Railway on the 28th September, and was I believe ignored until Mr. Mack reiterated his claim by his letter of the 2nd November. That in its turn was not acknowledged till the 21st November, when Messrs Brightwell and Moresby wrote a letter to the plaintiff which contained the following remarkable statement : 'You complain that the platform was in darkness, but the Company is under no obligation to illuminate its platform until just prior to the reception of trains; those of the public who elect to wander about them do so at their own risk, and it would seem that in the present case the accident could have been avoided by the exercise of ordinary care.' The writers of the letter seem to have overlooked the fact that the train was running two hours late, a matter which perhaps was within the knowledge of the Railway Servants but was not within the knowledge of the plaintiff.
6. The plaintiff in this case has put in a claim for Rs. 3,005 of which Rs. 255 was special damages which is not challenged. I think the claim was a moderate one. The plaintiff was a young active man who was a cripple for two months and who was a partial cripple for many months more. He says, and I accept it, that he tried to go on snipe-shooting in January but had to give it up and he (is) not completely healed yet. I am at a loss to understand why the defendant Railway Company have elected to fight this case, either on the question of liability or on the question of the quantum of damages. In support of their plea that the plaintiff's letter of the 17th September did not reveal to them the real facts, on which they now say that they would have met the claim which the plaintiff had made, in the middle of the trial they tendered to the plaintiff's legal advisers a cheque for Rs. 750 the sum which he claimed when he was in ignorance of the extent of his injuries. So transparent a device could deceive nobody, and the tender was in my opinion most properly rejected.
7. I need only make a passing allusion to the fact that a number of reports from the officials of the Railway were disclosed in the defendant's affidavit of documents and inspection of them was given to the plaintiff's solicitors. The affidavit having been signed by the Agent of the Railway, I entertain no doubt that though they are doubtless privileged documents the privilege was thereby completely waived. The documents are damaging to the Railway Company but I desire to say that in the conclusion to which I have come I place no reliance L>n them whatever. I am acting on the evidence of Mr. Mack and Mr. Lewis which I do not consider to have been shaken in the slightest degree.
8. I think that the whole history of this case discloses a lamentable failure on the part of the Railway Company to realise the nature and extent of their obligations to the travelling public, and though only a small sum of money is at stake I trust that the result of this case may tend to bring home to the. Railway officials some increased realisation of those obligations.
9. There will be a decree for the plaintiff for the amount claimed with costs. The fee of the expert witness will be fixed at Rs. 150.