1. These are two suits brought and or the provisions of the Fatal Accidents Act 1855, and by consent of all parties have been tried together as the facts in regard to both claims are identical save in respect of the damages which are claimed. In C. Section No. 96 of 1934 the plaintiff is the widow of one Venkataswami Naidu. In C.S. No. 445 of 1934 plaintiff 1 is the widow and plaintiffs 2 and 3 are the minor children of one Saman. The claims in both suits are for damages representing the loss of maintenance which the respective plaintiffs allege that they have sustained on account of the death of the two deceased who were the wage-earners of their respective families. There has been a considerable body of evidence given in these suits, none of which is very reliable and all the witnesses exaggerated in their evidence, what, I have come to the conclusion, were the real facts. 1st defendants own land in Walltax Road upon which is erected a railway station and permanent way. This is bordered on Wall-tax road by a wall of the total length of about 3,000 feet running approximately north and south. So far as this case is concerned, a small portion only of that wall is affected, some 300 or 400 yards north of the railway station. At this point there was erected a public latrine. The latrine was 58 feet 6 inches in length and having an overall width of 16 feet. The railway wall, which I will hereafter refer to as the compound wall, formed the western boundary of the latrine. There were two walls, being the north and south boundaries running at right angles to the compound wall and joining to it. These two walls were about 16 feet in length. The eastern boundary of the latrine was formed by a wall joining the outer ends of the north and south walls. The latrine was divided into two parts by a central wall running parallel to the compound wall and to the eastern wall of the latrine. This wall was about 58 feet 6 inches in length. The compound wall was about 10 or 11 feet high and the other walls I have mentioned were about 6 feet 6 inches in height. The entrance to the latrine was gained by two openings made in the north wall. The access to the latrine from Wall-tax road was gained by means of a passage from that road leading to the latrine, the distance from the road to the latrine being about 53 feet and around the north, east and south boundaries of the latrine, there was an open space leading from the passage I have mentioned. This latrine was erected by 2nd defendants. Under Section 184, Madras City Municipal Act 1919, it is provided as follows:
The Corporation shall provide and maintain in proper and convenient places a sufficient number of public latrines and shall cause the same to be kept clean and in proper order.
2. It is admitted by all parties that this latrine is one coming within the provisions of the above section and therefore it was a latrine belonging to the 2nd defendants, the Corporation, for which they were responsible as set out in the above section. At about 8 a.m. on 16th December 1933, the two deceased men I have mentioned were using the latrine and for that purpose were in the eastern or outer portion. The 1st defendants' compound wall fell and in falling knocked over the central wall of the latrine. These two men were killed by the falling of these two walls. The part of the compound wall which fell included not only the 58 feet 6 inches bordering the latrine but also about 10 feet on the north and south sides, in all about 80 feet of the compound wall fell. The claims against the two defendants are based upon negligence and nuisance. So far as the 1st defendants are concerned, in C.S. No. 96 of 1934 it is alleged that they left the relevant portion of the compound wall in a state of disrepair and were therefore negligent. After the close of all the evidence and indeed after the counsel on behalf of the two defendants had addressed me, an application was made by counsel on behalf of the plaintiff in that suit to add a claim against 1st defendants in nuisance. It was made at a very late stage of the proceedings and I granted this application upon the terms that in the event of succeeding upon that cause of action, the plaintiff should pay the costs of the defendants up to the date when the application was made, namely 5th April 1937. In C.S. No. 445 of 1934 the plaintiff alleges in the plaint that the claims of the plaintiffs in that suit are based on nuisance as well as negligence.
3. As regards the 2nd defendants, the claim against them is on the ground of negligence, the negligence being that they failed to keep the western wall of the latrine, being the 1st defendants' compound wall, in a proper state of repair and also they failed to inform the 1st defendants of the dangerous state in which this wall was previous to this fall. The basis of the latter allegations arises from the provisions of Section 258, Madras City Municipal Act, which provides that if any building be deemed by the Commissioner to be in a ruinous state or dangerous to passers by or to the occupiers of neighbouring structures, the Commissioner may, by notice, require the owner or occupier to fence off, take down, secure or repair such building so as to prevent any danger therefrom. It is contended that the provisions of this section provide a cause of complaint by a member of the public if the Commissioner, that is to say the 2nd defendants do not warn the occupier of the dangerous condition of buildings or take the necessary steps to sea that dangerous buildings are prevented from causing danger to the public.
4. The defences to the claims as pleaded in the written statements in addition to the denials of negligence and nuisances are that the compound wall and central wall fell owing to violent storms of rain and wind amounting vis major. This would mean that the storms were such as to be beyond the ordinary contemplation of man. During the course of the evidence with which I shall deal more fully later, it appears that rain had fallen, but the above contention finds no support from the evidence called either on behalf of the plaintiffs or on behalf of the two defendants and indeed neither of the learned Counsel for the defendants really relied upon this in their addresses to me at the close of the evidence. Whilst the erection of a wall upon land is an ordinary user of the land, nevertheless it is an uncommon occurrence for a wall to fall and when a wall does fall, in my view an explanation should be forthcoming from those who are responsible for its repair; Kearney v. London Brighton and South Coast Railway (1871) 6 Q.B. 759 was a case in which a brick in a bridge over a highway used by locomotives fell upon a foot passenger and it was held this was an unusual occurrence and the falling of the brick itself was prima facie evidence of negligence. In the absence of a satisfactory explanation from those responsible for the upkeep of the bridge, it was held, in that case, that the fall of the brick itself was sufficient evidence of negligence to justify the plaintiff succeeding in an action against the Railway Company.
5. The only explanation for the fall of the compound wall which has been given to me in the present case was that supplied by the building inspector employed by the 1st defendants, P.N. Swami Naidu, D.W. 1. It was this: He said that the flooring of the latrine was made of concrete but was not in satisfactory repair inasmuch as there were holes, which he called pits, in the floor. There had been rain in Madras on 14th and 15th December, that is to say two days previous to the fall of the wall. On account of the defects in the flooring, the rain had not flowed away but had stagnated in these pits against the wall during those two days and in stagnating it had percolated into the compound wall undermining its strength and caused its fall. I cannot accept such an explanation. A copy of the Port St. George Gazette was produced with the concurrence of all parties. It is recorded that on 14th December there was 2.1 inches of rain, on the 15th December, 2.05 inches, on the 16th December that is to say the day of the fall of the wall, the rainfall was 6.42 inches. The evidence of the conditions existing at the time of the fall, which I accept, was that it was drizzling. The accident occurred at 8 o'clock in the morning and there was no evidence before me that between midnight and 8 o'clock in the morning there had been any unusually heavy amount of rain; and although on the day of the accident there was the quantity I mentioned, I am satisfied that there had been very little of rainfall by the time the compound wall fell at 8 A.M. All the witnesses called for the plaintiff who were asked in cross-examination regarding wind denied that there was any violent wind at the time when the compound wall fell and no evidence was called on behalf of the defendants to suggest that that part of the plaintiffs' witnesses' evidence was inaccurate. With the comparatively small amount of rain, which I have mentioned, falling prior to this accident, and the unacceptable suggestion that pools of water collecting for the short period of 2 days at the base of a substantial wall would destroy its strength, the explanation which has been given to mo as regards this unfortunate accident cannot be accurate and I reject it. The one or two witnesses who arrived after the wall had fallen and helped to extricate the two unfortunate deceased men did not speak to any collection of water in the latrine.
6. It therefore follows that so far as the fall of the compound wall is concerned, no explanation is forthcoming from either of the defendants. I have mentioned already that the witnesses called before me exaggerated matters in their testimony. This also applies to the several witnesses who were called on behalf of the plaintiffs. I accept however from these witnesses that prior to this fall the compound wall showed signs of wear inasmuch as there were many cracks showing in the wall. During the course of the hearing, in the presence of the advocates on behalf of all the parties, I inspected this wall. The part which is now in the position occupied by the fallen portion is of course in excellent condition. Immediately to the south of the new wall there is a length of wall which clearly is not very old and one of the witnesses called on behalf of the plaintiffs told me that some five or six years ago this portion of wall to the south of the latrine had been rebuilt and the appearance I saw bears out the evidence of that witness. Further south of this portion, to which I have just referred, part of the old wall exists, which part is doubtless similar in age and construction to the fallen part by the latrine. The condition of this I can describe only as deplorable. Large pieces of mortar between the bricks with which this wall was built are missing, in some places to a depth of nearly half an inch; and generally it shows signs of decay and wear. I also saw cracks and loose bricks in this part of the wall. This condition is compatible with the fallen wall as described by some of the witnesses called on behalf of the plaintiffs, the defective condition being clearly visible to any one including persons with no knowledge of buildings.
7. I accept the evidence of the witnesses-called on behalf of the plaintiffs who described the fallen wall as defective, not to the extent to which some of these witnesses mentioned. One of them said that there was a hole in the wall through which a man was able easily to pass. I do not believe that part. I do accept their evidence that many other defects were apparent in the compound wall, bordering on the latrine, which defects at the time of the accident required urgent repair. In regard to this wall, D.W. 1,1st defendants' building inspector, told ma that it was part of his duty every two months to inspect the compound wall in order to see whether any parts were defective and whether any work was required to repair the wall in order to keep it in proper order, and that his last inspection was carried out within two months prior to the accident. He told me that at that inspection he found no cracks, that if there had been cracks he would have discovered them, that if there had been defects in the wall which would cause it to fall within two months after his inspection he would have been able to discover those defects and that in his experience he had never known a wall to be caused to fall by the stagnation of water near its base for two days. He also told me that it was his responsibility to his employers, 1st defendants, to inform them of the condition of this wall so that they could carry out the necessary repairs. In the light of the evidence which I have accepted, I am quite satisfied that either he made no inspection which it was his duty to make or, if he made it, it was of such a cursory nature that he failed to notice the defects which existed or, if he did notice them, he failed to report them. The 1st defendants, if they were not aware of the defective condition of this wall, certainly should have known of it as every opportunity was available for them to do so through their building inspector P.W. 1 whose duty it was to inform them.
8. I am satisfied that the fall of the compound wall was caused solely on account of its serious defective condition and by the failure of 1st defendants to carry out the necessary repairs which were required. By allowing this wall to get into this condition and in failing to remedy the existing defects, 1st defendants did not use ordinary care and skill which they should have used in order to maintain the compound wall in a safe condition. Had they used ordinary care and skill, they would have pro-vented this wall from falling. It was not suggested that 1st defendants were unaware that the latrine had been erected against their compound wall and that they did not know that members of the public had a right to use and were in the habit of using this latrine. Both these matters were within their knowledge. So far as the latrine itself is concerned, whilst it may not have been in a perfect condition, I am satisfied on the evidence I have heard that it was in a reasonably good state of repair and I accept the evidence of the two wit-nesses called on behalf of the Corporation when they say that a short time before the fall of the compound wall the latrine was whitewashed and that the condition of the walls and the floor was reasonably good. It is perfectly clear to me that the fall of the central wall was caused by the compound wall falling on to it and the weight breaking it down and not because of any defect in that wall itself. I come to the question whether 1st defendants are responsible to the plaintiffs in these suits. In Heaven v. Pender (1883) 11 Q.B.D. 503 in the course of his judgment says:
Whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognise that it he did not use ordinary care and the skill in his own conduct with regard to those circumstances, he would cause danger or injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.
9. In the circumstances which existed here, the Railway Company were aware that members of the public, as I pointed out above, were the habit of using a latrine erected against their compound wall. They would be aware that, if their compound wall were allowed to get into a state in which it would be likely to fall, danger to the members of the public using the latrine would be occasioned; they appreciated this inasmuch as they appointed D.W. 1 to inspect this compound wall, including the part adjoining the latrine, to see if any defects required attention. By doing this one can assume they appreciated this wall1 required repeated inspection in order that defects could be remedied and unless they were remedied the wall was likely to fall. The above statement of Brett, M.R. was referred to in Donoughue v. Stevenson (1932) A.C. 5 . Lord Atkin in the course of his speech somewhat criticized the statement of the Master of the Rolls but added that if properly limited, that statement appeared capable of forming a valuable practical guide. Later at p. 580 Lord Atkin says:
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then is in law your neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions-which are called in question.
10. At page 614, Lord Macmillan, having quoted the above passage and another passage of Brett, M.R., says:
The passages I have quoted, like all attempts to formulate principles of law compendiously and exhaustively, may be open to some criticism and their universality may require some qualification, but as enunciations of general legal doctrine, I am prepared like Lord Hunter to accept them as sound guides.
11. It appears that the learned Law Lords, whilst to some extent they consider the passage of Brett, M.R. I have quoted above, may be somewhat widely worded think it is a very sound guide regarding the duties which are owed by one member of the public to another. In Brown v. Cotterill (1934) 51 T.L.R. 21 the plaintiff was lawfully in a churchyard and whilst there, was injured by the fall of a tombstone which had been erected by the defendants. It was found that the defendants had been negligent in the erection of the tombstone. Lawrence J. in his judgment referred to and quoted from Donoughue v. Stevenson (1932) A.C. 5 cited above, and also referred to the question of proximity and the duty owed by one person to another mentioned by Lord Atkin and Lord Macmillan and later he says:
The proximity referred to by Lord Atkin is in my view involved in the fundamental principle of the law of negligence that every one is bound to take the care which an ordinary prudent man would take in the circumstances.
12. He held that in that case the plaintiff was entitled to recover damages from the defendants who had been negligent in erecting the tombstone, that there was a duty cast upon them to every member of the public who might lawfully enter the churchyard, to use reasonable care in its erection and a responsibility to any who might be injured by the fall of the tombstone unless it were properly erected. In the present case, 1st defendants were aware that members of the public used this latrine, that unless the compound wall was in a satisfactory condition it might or would fall and endanger such persons, it was therefore their duty with this knowledge to take reasonable care. Allowing the compound wall to get into the dangerous condition in which it was, and in failing to repair the obvious existing defects or otherwise preventing it falling, were omissions by the 1st defendants which they could reasonably foresee might cause injury to the persons using the latrine. These persons were closely and directly affected by these acts which the 1st defendants should have had in contemplation. In the respects I have mentioned, they failed to take the care which ordinary prudent men would take in the circumstances which existed and were known. I see no difference in principle between the facts in this case and those in Brown v. Cotterill (1934) 51 T.L.R. 21 in which it was held there was a duty cast upon tombstone erecters to every member of the public lawfully entering the churchyard in which it was erected to use reasonable care to prevent injury to such persons. The 1st defendants owed a duty to the lawful users of the latrine, including the two deceased, to take reasonable care to prevent this wall falling. In failing to remedy the defects and to keep the wall in a safe condition, they have been guilty of a breach of duty which they owed and were therefore negligent. In my view the plaintiffs in these two suits are entitled to succeed against the 1st defendants.
13. In regard to the 2nd defendants, they were not the owners, nor in control of the compound wall. The premises for which they were responsible was the latrine, which, I have already said, was in a reasonably safe condition. The failure by the Corporation to notify the Railway Company of the unsafe condition of the compound wall, as required by Section 258 is not in my view a matter which gives to any member of the public a right to recover from the 2nd defendants on the ground that they did not carry out their duty under this section. The wording of the section is not in its terms mandatory but permissive inasmuch as it provides that the Commissioner, that is the 2nd defendants, may by notice require the owner or occupier to repair. Apart from the provisions of that section, it cannot be and has not been contended before me that the Corporation are responsible to the plaintiffs inasmuch as they failed to notify the 1st defendants of the defective condition of the wall. This section in my view merely empowers the Corporation if they deem it right so to do to notify the occupier of defective buildings. It does not, if they fail to exercise their power under that section, give any member of the public a right of complaint against the Corporation. In Saunders v. Holborn District Board of Works (1895) 1 Q.B. 64 the defendants were empowered under the Public Health (London) Act, 1891, to remove street refuse from streets. Having failed to remove refuse, the plaintiff was caused to fall on account of such failure and he claimed damages from the defendant on account of their negligence in failing to remove the refuse. Mathew J. at p. 68 says in the course of his judgment:
It is that, in order to establish that a public body of this description is liable to action for default in performing a duty imposed by statute, it must be shown that the Legislature has used language indicating an intention that this liability shall be imposed and unless such intention on the part of the Legislature is clearly disclosed, no action will lie.
14. Later he says:
Before the Act the public had no right of action in such a case; why should it be supposed that the statute creates any such obligation? In my opinion the meaning of the section must be confined to the plain meaning of the words employed.
15. In Municipality of Picton v. Geldert (1893) A.C. 524 Lord Hobhouse at page 527 says:
The latest English case is that in Cowley v. New Market Local Board (1892) A.C. 345. It must be now taken as settled law that transfer to a public corporation of the obligation to repair does not by itself render such corporation liable to an action in respect of mere non-feasance. In order to establish such liability it must be shown that the Legislature has used language indicating an intention that this liability shall be imposed.
16. I cannot find and have not been referred to any part of the City Municipal Act which indicates a liability cast upon the 2nd defendants at the suit of a member of the public for their failure to exercise their powers Under Section 258, and in this respect I the plaintiffs' contention fails. So far as their personal negligence is concerned, whether the two deceased were invitees or licensees, in my view it is not necessary for me to decide. The premises of the 2nd defendants were in a reasonably good condition; and neither of the deceased was injured by reason of any defect in the structure of the 2nd defendants' latrine. The 2nd defendants were not the occupiers of the compound wall. This was in the occupation of 1st defendants. No authority has been quoted to me which lays down the principle that when a man is upon the premises of one person and is injured on account of the defective condition of another person's property, the person upon whose premises he is at the time of the injury is liable to compensate him for the damages sustained. In my view 2nd defendants are not liable to the plaintiffs in either of these suits in respect of the fall of the compound wall.
17. The next question is one of damages. In C.S. No. 96 of 1934, the evidence of Kuppammal, the plaintiff, was that her husband gave her one rupee every day out of which she paid the rent of the house in which she lived with her deceased husband. The food for both of them cost about 12 annas a day. Judging as best as one can, I have come to the conclusion, the maintenance which she was receiving from her husband amounted to a sum of about 6 to 8 annas a day. She is about 37 years of age and her husband, the deceased, was about 40. The sum she is entitled to is an amount by which she is a loser in respect of her future maintenance. Many factors have to be considered and borne in mind when endeavour is made to arrive at this sum. The possibility of her own early death, again the possibility that her deceased husband might have died from other causes had he not been killed by this accident. He might have also lost the employment upon which he was engaged at the time of his death and have been unemployed. She is not entitled, as it was contended before me, to a sum calculated upon a stated number of years from the moment of her loss. Allowance must be made because she is now receiving a lump sum. Bearing all these factors in mind I have come to the conclusion that the amount of damages which I should award to her is a sum of Rs. 1,200. In C.S. No. 445 of 1934 the dependants of the deceased Saman are his widow, plaintiff 1, who is about 35 years of age, plaintiff 2, the son of the deceased, a boy aged 10, and plaintiff 3, a girl aged 5. The deceased was 45 years of age. Plaintiff 1 informed me that her husband gave her one rupee a day out of which she paid the rent of the house and bought some of the clothes and spent 10 to 12 annas a day on food. Part of it of course would be consumed by the deceased. The deceased no doubt had eaten more food than the other members of the family. The loss of maintenance which these three have suffered appears to be about 8 or 10 annas a day, being a larger amount per day than in the other suit, because there were more members of the family to feed; consequently the deceased would not be able to avail him-self of as much of the family contribution. The amount which I have to award must be allocated. Because there are three dependants, it does not mean that treble the amount given in the other case must be awarded. It is a sum based upon the actual loss, as far as one can estimate it, of the three plaintiffs concerned. The same factors must be borne in mind which I have mentioned. I have come to the conclusion that in this case a total sum of Rs. 1,750 is the amount which the plaintiffs are entitled to recover in respect of the damages they have sustained by being deprived of their maintenance. This amount I allocate as to Rs. 1,000 to plaintiff 1, Rs. 250 to plaintiff 2 and Rs. 500 to plaintiff 3. The amounts in respect of the minors, namely plaintiffs 2 and 3, will be paid in Court. There will be decrees in favour of the plaintiffs in both these suits against 1 defendants with costs.
18. As I have found in C.S. No. 96 of 1934 the plaintiff is entitled to succeed upon the plea of negligence, the question of the plaintiff paying 1st defendants' costs does wet arise. There will be a decree in favour of 2nd defendants with costs. In regard to this order for costs, I intend to follow the English practice. The plaintiff acted reasonably in suing both defendants and it is therefore proper that the plaintiffs' liability to bear 2nd defendants' costs should be borne by 1st defendants : Besterman v. British Motor Cab Corporation Ltd. (1914) 3 K.B. 181. I make an order in favour of 2nd defendants direct against 1st defendants for costs according to the rule in Sanderson v. Blith Theater Corporation (1903) 2 K.B. 533 and Rudow v. Great Britain Mutual Life Assurance Society (1881) 17 Ch. D. 600. These being pauper suits, it is necessary for me to order further that the fees to Government shall be a first charge on the amounts received.