S. Ratnavel Pandian J.
1. The unsuccessful plaintiff in O.S. No. 4908 of 1968 on the file of the City Civil Court, Madras is the appellant herein. The appellant filed a suit for the recovery of a sum of Rs. 25,720.34 as damages in respect of an accident that occurred on 16th August, 1962 at about 7 p.m. The relevant facts that led to the action can be stated thus : The plaintiff is the real owner of a Baby taxi, Standard X, bearing Registration No. M.D.C. 9261 of the model of 1956. But the registration certificate stands in the name of his son V.K. Bhaktavatsalam. On 16th August, 1962, the defendant Railway's train viz., the Tirunelveli Express left Madras Egmore Railway Station at about 6-45 p.m. and while proceeding to Tirunelveli, crashed against the said Baby taxi at the level crossing between Kodambakkam and Mambalam Railway Stations. The said level crossing was situated immediately north of Mambalam Railway Station and it is referred to as Doraiswami Iyer level crossing. It is so called by this name since Doraiswami Iyer Street in T'Nagar is just east of the said level crossing. The area to the west of this crossing is called old Mambalam. It is the case of the plaintiff that the driver of the taxi viz., P.W. 3 drove the vehicle across the level-crossing as the gates were open. While the rear portion of the taxi had not crossed the steam-line, the Tirunelveli Express, without any warning, came from Egmore side and dashed against the taxi. As a result of this impact, the two passengers and the driver were injured and the taxi was severely damaged. According to the plaintiff, the accident was entirely due to the gross negligence of the defendant Railway Administration and their staff, for the reasons that there was no automatic signal system and no interlocking arrangement for closing the gates sufficiently early before the train was at sight. The Railway gate was wide open and there was no signal or any other alarm at or near the gate to put the driver on guard. It is thus alleged that there was an open invitation as it were for the plaintiff's car to pass through the level-crossing. The plaintiff has valued the damage to the vehicle at Rs. 7,720-34 and a sum of Rs. 18,000 is claimed as the loss of income at the rate of Rs. 30 per day from 17th August, 1962 to 10th April, 1964. The said taxi was held up in the office of the Police Commissioner in connection with an inquiry into this accident and the plaintiff took delivery of the same only on 2nd September, 1963, since the plaintiff had been awaiting inspection by the officials of the defendant.
2. The defendant railway resisted the claim contending as follows : The plaintiff is not the registered owner of the vehicle. There is no question of negligence on the part of the defendant as alleged. The taxi driver (P.W. 3), in spite of necessary warnings, entered the level crossing in spite of the road danger signal exhibited at the gate and ignoring the continuous sounding of the gong and the shouting of the gateman who was trying to close the gate, warning of the approaching train. The level-crossing is manned level-crossing and on the approaching of a train from either direction, the warning lights are lit and the gongs sound warning the road-traffic about the impending close of the gates. In this case, P.W. 3 entered the level-crossing in spite of the warning. It is futile for the plaintiff to contend that there was an open invitation as it were for the taxi to pass through. Thus, it is submitted by the defendant that since the accident was caused solely because of the rashness and negligence on the part of the driver of the taxi, the defendant is not responsible for the accident or for any alleged damage, which the plaintiff claims to have suffered thereby. The plaintiff's claim of Rs. 7,720 towards the repair of the vehicle is also not admitted. Further, the plaintiff is not entitled to claim any damages towards loss of income and the suit is also barred by limitation.
3. On the above pleadings, the following issues were set for trial:
1. Is the suit not maintainable for the reasons stated in paragraph 3 of the written statement ?
2. Did the defendant observe all that was required of them to warn the traffic passing across the line at the time of the accident?
3. Was the plaintiff's driver rash and negligent in entering the level-crossing as claimed in paragraph 9 of the written statement?
4. If issue 2 is found in the negative, what is the amount of damages due to the plain -tiff?
5. Is the Union of India, in any event, liable for the tortious acts of its servants?
6. Is the suit barred by limitation ?
7. To what relief is the plaintiff entitled?
4. The plaintiff examined four witnesses including himself and marked Exhibits A-1 to A-10. The defendant relied or : the evidence of D. Ws. 1 to 3 and marked Exhibits B-i to B-28. The learned Principal Judge of the City Civil Court, after elaborately discussing the evidence, has found on issue 1 that the suit is maintainable and on the main issues 2 and 3 that the accident was not as a result of any negligence on the part of the Railway servants, but was entirely due to the rashness on the part of the taxi driver (P. W. 3). On issue 4 the learned trial Judge estimated the damages suffered by the plaintiff at Rs. 5,800 (Rs. 4,000 for the damage to the vehicle and Rs. 1,800 towards the loss of income). Since issues 5 and 6 were not pressed by the defendant, no finding Was given on those issues. Ultimately the trial Court dismissed the suit without costs. It is as against this dismissal of the suit, this appeal has been filed.
5. Before going to a discussion of the relevant questions of law on the disputed facts of the case, the following undisputed facts may be summarised for a proper understanding and appraisal of the evidence. The occurrence took place on 16th August, 1962 at about 7 p.m. at a level-crossing known as Doraiswami Iyer Street level-crossing (hereinafter referred to as the level-crossing) which ran across the respondent's railway track at a point between Kodambakkam and Mambalam Railway Stations. The particular level-crossing runs east to west, south to Kodambakka in and north to Mambalam, and on either side of the crossing there were gates made up of two leaves as on the date of occurrence, opening outwards, away from the track. The gate on the east gave access to Doraiswami Iyer Street in T.'Nagar as said earlier, and on the west of it lay West Mambalam, otherwise known as Old Mambalam. There were gongs and road-light signals facing outwards from the point of crossing on either side. 1 he gates were provided with padlocks and it is the duty of the gonger res possible for that section of the Railway line to ensure that the gates are kept closed and secured except when actually in use. It is the public crossing over the line for carriages and foot-passengers There are three railway lines running over the level-crossing as indicated in Exhibit B-5 viz., the main line on the eastern-most side the down-hue in the centre and the up-line on the western-most side, out of which the two lines on the western side viz., the up and down lines are used for the up and down electric trains and the eastern-most mainline is used for the steam engine trains. On the evening in question an electric train bearing No. 130 broke down at the Nungambakkam Railway Station, rendering one of the tracks of the electric trains non-commissioned be, all the electric trains bound for the up and down journeys had to use only one line, which, as a result, necessitated the closing of the gates at the level crossing for a considerable length of time running from 6-00 p.m. to 6-45 P.M. Only at 6-45 P.M the ringing of the warning, gong stopped and the road-light signal went off, indicating that the gates at the level-crossing would be opened for traffic Accordingly D. W. 2 and the other gate-man viz., Govinda (not examined since retired) opened the gates. As pointed out, since the gates were closed for 45 minutes, a large number of vehicles had collected on either side of the level-crossing. As soon as the gates were opened, a trail of vehicles rushed through the crossing It is the defendant's case that within a few minutes of the opening of the gates the warning gong began to ring again and the red-lights were glown indicating, that some train was; approaching, that the gates should be closed. But the plaintiff disputes this fact and contends that he did not hear any caution of the bells ringing or see any red-light at the gate warning not to proceed. About this controversy, we shall discuss later.
6. The taxi concerned in the case had been stationed about 250 yards east of the level-crossing on that road on the T. Nagar side. Two young boys (the passengers in the taxi, who were injured but not examined) had engaged the taxi for being taken to old Mambalam from where some passengers had to be taken to the Madras Central Station. P. W. 3 was the taxi driver. After taking the two boys in the taxi, P. W. 3, the taxi driver, proceeded towards old Mambalam and on seeing the gate at the level-crossing closed, joined the queue of vehicles already waiting on the eastern side to cross the level-crossing to go to old Mambalam on the west. After the gates were opened, P. W. 3 followed the vehicles ahead of him and entered the level-crossing at which point of time the Tirunelveli Express came on the steam-line and struck the rear portion of the taxi as a result of which the taxi, with the driver (P. W. 3) and the two young boys, was flung out on to the side of the main line, i.e., between the main line and the down line as shown in Exhibit B-5. The shown in Exhibit B-5. The train moved further and stopped. By the time the engine driver (D. W. 3) could come up to the place of accident after bringing the train to a halt, the injured viz., P. W. 3 and the two boys had been taken away from the place to the hospital.
7. Now, we shall refer to the other pieces of evidence adduced by both sides in the case. The appellant had examined, as we have already said, four witnesses including himself. P. Ws. 1 and 2 speak only with reference to their ownership of the damaged vehicle. P.W. 4, working as a mechanic in Vasu Automobiles, speaks about the damage to the taxi and the approximate cost of repairs which, according to him, would exceed Rs. 7,000. So the evidence of these three witnesses is not of any value for the determination of the main issue as to how the accident had happened and as to who was really negligent. So, the entire case of the plaintiff, for the determination of the main issue, rests only on the evidence of P. W. 3. P. W. 3 says that he, having been engaged by the two young boys to go to old Mambalam on the western side, proceeded towards old Mambalam. He found the gate at the level crossing closed and a number of vehicles waiting. Within five minutes of his arrival at the gate, the : gates were opened and the vehicles were allowed to cross the level-crossing from either side. He drove his vehicle behind other vehicles towards west. When his vehicle was on the western-most railway track, he heard people shouting '' of the shouts, he heard a heavy noise of impact, which occurred on the rear wheel of his vehicle on the eastern-most railway track viz., the main steamline. As the vehicle had been thrown, he became unconscious and he does not speak as to what happened afterwards. It is the evidence of P. W. 3 touching the point at issue that the gate was not closed after it was opened and before the impact occurred and he did not hear any caution bell ringing or see any red-light at the gate warning not to proceed. Even during the chief-examination he has marked Exhibit B-11, the statement given by him to the railway authorities, admitted its correctness.
8. Coming to the evidence of D. Ws. 1 to 3, the evidence of D. W. 1 the Station Master, is to the effect that there was no failure in the electric system suggesting that warning signals were functioning properly at the points of the level-crossing, D. W. 2, the gateman at the western gate, speaks first of all about the general rule that when the train leaves the station the bells at the gate would ring and the red-lights facing the roads on either side would be burnt and on such warnings, the gatemen would close the gates on either side. Coming to the accident, he states that the gates were closed at 6 p.m. for passing trains, continuously for 45 minutes and vehicles in large numbers had collected in Dorai-swami Iyer Road on the eastern side as well as the old Mambalam side. At about 6-45 p. m. there was clearance for opening the gates and so they opened the gates and allowed the vehicles to pass through. But, within a few minutes, bells began ringing and the red-lights were lit. Govindan (since retired as pointed out supra), who was working on the Doraiswamy Iyer Road side, and himself on the other side, closed one leaf of their respective gates. Govindan was attempting to close the other leaf of the eastern gate. But, before he could so, the vehicle in question rushed into the track through the space at the other leaf of the eastern gate which was still open. In the meanwhile, the train on the steam-lire was approaching. On seeing the train approaching, himself and Govindan cried out that the train was approaching. The witness would further swear that on seeing this he showed the signal to the driver of the train to stop ; but the train could not be stopped. Within a few seconds, the train struck the vehicle. He asserts that the signals at the particular point began to function and speaks about the approach of the train and he is definite that on the particular day the gongs were ringing and the danger lights glowing. D. W. 3 was the engine-driver of the Tirunelveli Express which got involved in the accident. His evidence is that he left the Egmore Station at about 6-45 p. m. and after receiving the token at Kodambakkam (which means that the track was clear), proceeded further. He saw the green signal at Kodambakkam and the train was speeding up at the rate of 30 miles per hour. The next halt of the train was at Mambalam Station. While approaching the level-crossing at which point the accident has occurred, he observed a car crossing at the track. On seeing that, he applied the brakes. But, the said car passed and cleared the track. But, another Baby taxi (suit taxi) followed the previous one and attempted to cross the track. But, before the train came to a halt as he had already applied the brakes, there was an impact between the engine and the rear of the taxi. But, he would add that he did not see any signal to stop the train and there was no other vehicle coming behind the suit taxi. After the impact, he got down from the engine ; but he could not find the taxi driver there ; probably, even before the arrival of the engine driver, the injured occupants of the car had been removed to the hospital. In cross-examination, it is brought out that the train passed Kodambakkam at 6-56 p.m. and that the running time between Kodambakkam and Mambalam stations is 2 to 3 minutes. The search light of the engine was on. There is a curve in the track and so the gates of the level-crossing in question were visible only when the engine was about 30 yards, north of it and not 200 yards as suggested. When his attention was drawn to a particular point as to whether the gates were closed or not, he would say that he was not able to see the gate leaves and so he could not say whether they were open or not. On that day, one Mr. Mayers was working as the first fireman in the engine and his duty was to keep an. eye op the track. He applied the brakes while the train was 30 yards north of the gate and after the impact the train moved for about 100 yards and finally came to a halt. Even if the danger signal had been shown, he says that the train could not have been stopped before reaching the level-crossing. Speaking about his ability and experience, he would say that he has been an engine driver for the past 24 years and has received awards, for good service on three occasions.
9. The main contention of the learned Counsel appearing for the appellant is. that as the gateman failed to close the gates and as the gates remained open it was only an invitation as it were to the taxi driver (P. W. 3) to cross the line and that was why the suit taxi, following the other vehicles, entered into the railway track, which resulted in the accident, and therefore the accident was due to the gross negligence of the defendant Administration and its staff. A faint argument was also further advanced, on the strength of the pleadings in the plaint, that at or about the time of the accident there no Was signal or any other alarm at or near the gate to put the appellant-plaintiff on guard. Further, he would emphatically urge that even assuming that there were the red signal and the ringing of the gong,, they were warnings only to alert the gate-men to close the gates and would not amount to warnings to the public not to cross the level-crossing, and therefore, until the gates are closed, thereby preventing the traffic from entering into the track, one has got a right of entry. In other words, it is contended that keeping the gates open by itself is an invitation to the passengers to pass through and the liability of the Railway Administration. for any accident that may occur subsist till the gates are closed.
10. Coming on to the questions to whether the gongs were ringing and the red-lights were lit, P. W. 3 is not assertive that the gongs did not ring or that the red-lights did not glow. But, lie would simply say that he did not hear any caution bell ringing or see any red-light at the gates warning not to proceed. In the chief-examination itself, as we have already mentioned in the course of the narration of the evidence, Exhibit B-11, the signed statement given by P. W. 3 to the Sub-Inspector of Police, Egmore, on 21st August, 1962, is marked. There is no evidence whether there was any criminal case registered in connection with this accident and whether this statement has been recorded during the course of the investigation. Anyway, without going into the question as to its admissibility in evidence, we feel that though the appellant has relied on it to support his case, in fact the major portion of the statement goes against him. We shall discuss this statement later in detail while dealing with the first question. At this particular juncture, we may mention that this document is relied upon by the appellant to show that even in Exhibit P-11 , he has stated that he did not hear any bell-sound and did not see any red-light. As against the evidence of P. W. 3 it has been brought out in the cross-examination of D. W. 1 that there was no failure of electricity on the date of the accident. D. W. 2 is very emphatic in his evidence that within a few minutes after the gates were opened at 6.45 p. m. the bells began ringing and the red-lights were glowing, thereby indicating that the train was approaching. In spite of the warnings, the suit vehicle entered into the track. There is absolutely no cross-examination nor any suggestion that the bells did not ring and the red-lights did not glow. Exhibit E-7 the relevant sheets from the level-crossing- register relating to the suit level-crossing and Exhibit B-8 the special report of the Permanent-way Inspector regarding (he working of the level-crossing show that the two warnings are working electrically and that they warn the users of the road about the approaching of the train. In the absence of any tangible evidence controverting this aspect, we hold that the gongs were ringing and the red-lights at the gates were glowing at the time of the accident. It is admitted that electric red-lights are fixed on either side of the level-crossing. It is also pertinent to note that the lights are facing the roads on either side. That itself is an indication that when the red-lights are on, the people are warned not to cross the level-crossing. In addition to these red-lights, the gongs also sound. By no stretch of imagination can it be said that this sounding of the gongs, which lasts for some time at the time of the closing of the gates, is intended merely to the gatemen. It is well-known that all foot-passengers and other traffic intending to cross the level-crossing get alterted by the red-lights and the sounding of the gongs. It is absurd to say that P. W. 3 the taxi driver, could ignore the red-lights and the ringing of the gongs, saying that they are only an indication to the gate-men to close the gates and not to alert the public. In this connection, another point may also be noted. The question is what is the warning to the passengers intending to cross the level-crossing The act of the gatemen closing the gates is a step taken by them after the warnings already given to the passengers on the road. When the gates are being closed, it cannot be said that it is a warning, because by such an act the road-users are actually prevented from crossing. Thus, the position is that at level-crossings where the red-lights and the sounding of gongs are provided, they constitute the actual' warnings to the public not to cross because of the approaching of the train. Then, the gatemen close the gates in order to physically prevent the road users from entering into the track. Thus, the closing of the gates is an additional precaution, an additional preventive step, provided by the Railway Administration against the road-users who in spite of the red-lights and the sounding of the gongs, may choose to enter the railway track. In this connection, still another point can be noted. It is the primary and rudimentary principle that red-light, signals on the highways are given as a danger signal not to proceed further. These signals are intended and also understood by the public at large as a warning not to proceed further. Likewise, at railway level-crossings also these lights and gongs are provided to warn and alert the public sufficiently in advance not to proceed further. The closing of the gates is an additional step taken by the railways as provided in Section 13 of the Railways Act and Rules 227 to 235 (under Chapter VIII) coming under Part I (Rules for the Guidance of Railway Servants of the General Rules framed under Section 47 of the Railways Act, which came into I force from the 15th May, 1930. Section : 124 of the Indian Railways Act is a penal section providing for the punishment of persons who knowing or having reason to believe that an engine or train is approaching along the railway open any gate set up on either side of the railway across a road or pass or attempt to pass or drive or take or attempt to drive or 'take any animal, vehicle or other thing across the railway. Thus, even if a person knows or has reason to believe that an engine or train is approaching along the railway he is prevented from crossing or attempting to cross the railway line. Therefore, mere knowledge or a reasonable belief about the approaching of any train or engine is a sufficient warning to the public not to cross the level-crossing. No other warning is actually necessary. But in this case, we have got ample evidence to show that red-lights and gongs were fixed at the gates of the level-crossing as shown in the plan Exhibit B-5. We also find from the judgment of the lower Court that the learned Counsel for the plaintiff did not contend that the aforesaid warnings were not there. On the other hand there is evidence to show that in spite of the red-light (danger) signal sounding of the gongs, the attempt of the gateman to close the gate and his actually closing one of the leaves as referred to above and the admitted loud shouting by the gateman that the train Was coming, the taxi driver P. W. 3 had chosen to cross the level-crossing. The abovesaid warnings had no effect on him. We, therefore, hold that in this case the sounding of the gongs and the glowing of the danger signals at the gates facing the roads on either side are by themselves sufficient warnings to the road-traffic not to cross the level-crossing and the closure of the gates was only an additional precaution physically preventing any trespass by the road-users into the railway track. As regards level-crossings where there are no such red-lights or gongs or any other additional warnings provided. Rule 229 of the General Rules of the Railways framed under Section 47 of the Act and the other rules and instructions issued under the Act should be referred. So far as this case is concerned, the argument advanced by the learned Counsel for the appellant on this aspect is not acceptable.
11. Coming to the other question as to whether one of the leaves of the eastern gate was closed by the gateman and whether he attempted to close the other one also, P. W. 3 would state that the gate was not closed after it was opened before the impact occurred. But, D. W. 3 swears that they (gatemen) closed one of the leaves of the gates on either side and before the gateman or the eastern side could close the other leaf, the suit taxi rushed in in spite of the warnings. In Exhibit B-11, P. W. 3 himself has admitted that the gateman tried his best to close the gates, though in another place he would state that when he entered, both the gates were in an open condition. Whatever, it maybe, he has categorically admitted that four or five minutes after the gate was opened, the gateman was shouting loudly about the coming of No. 119 Express (the Tirunelveli Express) and that the train was 250 yards away. His vehicle was jammed and correctly on the track and there was only a gap of 11/2 ft. between his taxi and the car which it followed. He turned to the left and got into a depression and the dicky in the rear portion of the taxi was on the railway line, infringing the line, and so he was unable to move. He was continuously looking at the approaching train. Meanwhile, the train came and hit at his taxi. In another place, he admits that the gateman was shouting loudly about the approaching of the train and asking he traffic to clear away. Coming to his evidence in Court, he has stated:
When my vehicle was on the easternmost railway track, I heard people shouting '...' and within two or three seconds of that noise, I heard a heavy noise of impact.
Thus, it is very clear that P. W. 3 was warned by the gateman. The question is, when. Two important points have to be noted in this connection. As we have already pointed out, he has stated in Exhibit B-11 that the gateman tried his best to close the gate. From the way in which he has narrated the incident, it is clear that he refers only to the eastern gateman. If he had already crossed the gate and entered the hack and was proceeding towards west, he could not have seen the eastern gateman closing the gate behind him. So, the only possibility is that before he entered the level-crossing, he should have already seen the gateman trying his best to close the gate. If the gateman had really tried to close the gate only after P. W. 3's entrance into the track, he would not have mentioned the said fact in Exhibit B-11 . Ex facie on a reading of the statement, one would be clearly impressed that the shouting and the attempt to close the gates by the gateman were simultaneous and before P.W. 3 actually entered into the railway track. The prudent driver should have known that the gateman was trying to close the gate only to prevent him from entering into the track since the train was coming. But, in spite of these warnings, he has merely taken a risk in his anxiety to take the passengers to the Central Station. So, we hold that in utter disregard of the warnings, the driver P. W. 3 had entered into the level-crossing.
12. The next question, in our opinion, which arises for determination is about the capacity in which P. W. 3 drove his taxi over the level-crossing on the occasion of the accident. There are three categories in which persons visiting premises, belonging to another may fall. They are (1) by the invitation, express or implied of the occupier, (2) with the leave and licence of the occupier, and (3) as trespassers.
13. The meaning of the word 'invitee' is given in the Shorter Oxford English Dictionary, IIIrd Edition, Volume 1, thus ' One who is invited.'
The meaning of the word ' invite ' is stated thus:
To ask (a person) graciously, kindly or courteously, (a) to come to (into etc.) a place or proceeding;
(b) to do something assumed to the agreeable ;
(c) to request,
(d) to try to attract or induce
Of a thing : to present inducements to (a person) to do something or proceed to place or action ;
(e) to tend to bring on, to attract physically.
The meaning of the word 'invite' as given in Funk and Wangnall's New Standard Dictionary of the English language, reads:
(1) to ask to do some act or go to some place; request the presence or the action of, usually as a favour or courtesy ; (2) to draw by means of temptations or allurements.
Stroud's Judicial Dictionary of Words and Phrases, IVth Edition, Volume 3, at page 1423, gives the definition of 'invitee' thus:
An invitee means a person invited to the premises by the owner or occupier for purposes of business or of material interest.
In view of our finding that the taxi driver (P. W. 3) entered into the level-crossing in spite of the warnings given by the gateman, we hold that the taxi driver does not come under any of the definitions of the word ' invitee ' mentioned above.
The next question is whether P. W. 3 was a licensee. Stroud's Judicial Dictionary IVth Edition, Volume 3, at page 1539 defines the word ' licensee ' as follows:
A licensee is a person who has permission to do an act which without such permission would be unlawful.
It distinguishes 'invitees' stating that 'invitees' are persons who enter upon premises not as mere volunteers or licensees, or guests or servants or persons whose employment is such that danger may be considered as bargained for, but who go upon business which concerns the occupier and upon his invitation, express or implied, and further states that the leading distinction between an invitee and a licensee is that in the case of the former, the invitor and the invitee have a common interest While in the latter the licensor and the licensee have none. While dealing with invitees and licensees, the House of Lords in Robert Addie and Sons Collieries) Ltd. v. Dumbreck (1929) A.C. 358, held that the highest duty exists towards those persons who fall into the first category (viz. invitees) and who are present by the invitation of the occupier. Towards such persons, the occupier has the duty of taking reasonable care that the premises are safe. In case of persons who are not there by invitation, but who are there by leave and licence, express or implied, the duty is much less stringent--the occupier has no duty to ensure that the premises are safe, but he is bound not to create a trap or to allow a concealed danger to exist upon the said premises, which is not apparent to the visitor, but which is known or about to be known--to the occupier. Applying the above principles to this case, when the gates are opened and no warning is given, the public are permitted to cross the level-crossing, i.e., to pass through the land belonging to the Railway within the level-crossing and to that extent they fall under the category of ' licensees ' during such periods. But, the moment the public come to know or have reason to believe about the approach of any train or engine--whatever may be the source through which they acquire such knowledge, for example, the ringing of the gongs or the burning of the red lights, the warning given by the gatemen etc.,--they are expressly prohibited under Section 124 of the Railways Act from crossing the level crossing. In such contingencies, they would fall under the category of trespassers. On the evidence adduced in this case, it cannot be said that P.W. 3 was either an invitee or a licensee, because as we have already pointed out, the driver P.W. 3 of his own accord and risk entered into the level crossing in utter disregard of the warnings and without the consent and permission of the gateman. So, the duty of the occupier (Railway) to the invitee or licensee does not at all arise in this case.
14. When P.W. 3 does not fall within the categories of ' invitee' and ' licensee necessarily he has to fall under the third category 'trespasser'. The Draft Indian Penal Code, by Section 418, defined the word ' trespasser 'thus : ' Whoever exercises any dominion over any property, not having a legal right independent of the consent of any other party to exercise such dominion, and not having the consent express or implied, of any party legally entitled to give a consent which would authorise the exercise of such dominion, is said to trespass. ' Halsbury's Laws of England IIIrd Edition Volume 38 defines the word 'trespass as follows : .
Trespass is a wrongful act done in disturbance of the possession of property of another, or against the person of another, against his will. To constitute a trespass the act must in general be unlawful at the time when it was committed.
Here in this case, P.W. 3's act of en try into the railway track at the relevant time was unlawful as per Section 124 of the Indian Railways Act. From the above discussion , there can be no doubt that P.W. 3. was a trespasser when he was on the track.
15. Then, we have to examine the duty of the occupier towards a trespasser. The House of Lords, in Robert Addie and Sons v. Dumbreck (1929) A.C. 358, has observed at page 365 thus:
Towards a trespasser the occupier has no duty to take reasonable care for his protection or even to protect him from, concealed danger. The trespasser comes on the premises at his own risk. An occupier is in such a case liable only where the injury is due to come wilful act involving something more than the absence of reasonable care. There must be some act done with the deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the presence of the trespasser.
16. This principle has been followed in almost all the English cases. In Videan and Anr. v. British Transport Commission (1963) 2 Q.B. 650 Lord Denning, M.R. has observed:
The simple test of foreseeability is sufficient to explain all the reported cases on trespassers, though not all the statements contained in them. All the circumstances must be taken into account to see whether the consequence is with- . in the risk created by the negligence ; but that principle applies only where the occupier or a contractor or any one else conducts activities on land and not where an occupier has done no work that of on land, for then his liability is an occupier and nothing else.
Lord Atkin in Rillen and Pettigrew v. I.C.I. (Alkali) Ltd. 1935 A11 E.R. Rep. 555 : 1936 A.C. 65 observes:
I know of no duty to a trespasser owed by the occupier other than, when the trespasser is known to be present, to abstain from doing an act which, if done carelessly, must reasonably be contemplated as likely to injure him, and, of course, to abstain from doing acts which are intended to injure him.
In Commissioner for Railways v. Francis John Quinlain 1964 A.C. 1054 : (1964) 1 All E.R. 897, the respondent's truck, which was loaded with building materials and which he was driving over the crossing was struck by a train and the respondent was injured. The respondent had not obtained the permission to use the crossing. Their Lordships while holding that he was a trespasser, approved of the rule of the English Common law stated by Hamilton, L.J. with maximum brevity in Latham v. R. Johnson and Nephew Ltd. (1913) 1 K.B. 398 : 29 T.L.R. 124
The owner of the property is under a duty not to injure the trespasser wilfully ;' not to do a wilful act in reckless disregard of ordinary humanity towards him ; but otherwise a man ' trespasses at his own risk.
Their Lordships felt that the above words laying down the content and limits of the duty owed by the occupier towards the trespasser did not admit of much qualification or invite the skill of the amplifier. Accordingly the appellant was held not liable to the respondent in damages. The above principle is well considered in a recent decision of the Privy Council in Southern Portland Cement Ltd. v. Rodney John Cooper (1974) 2 W.L.R. 152. It was held that since the duty of an occupier towards a trespasser was based not on the relationship forced upon him but on considerations of humanity the occupier's duty only arose if he had knowledge of or had created the danger on his land ; that no unreasonable burden was to be placed on an occupier and accordingly an occupier was entitled to consider ail the disadvantages to himself in taking action for the protection of trespassers and weigh them against the degree of likelihood of trespassers and the degree of hidden or unexpected danger to which trespassers might be exposed. But, since the trespasser in that case was a child aged 13 years and since the occupier-appellant knew that children were likely to trespass on the land, of the likelihood of such children coming into contact with the danger on the land (electric cable on the sand-hill) their Lordships had to hold that the occupier was liable. However, the principle laid down in Commissioner for Railways v. Francis John Quintain (1964) 1 All E.R. 897 : 1964 A.C. 1054, has been reiterated.
17. Bearing the above-said principles in mind we have to consider from the evidence on record and on a panoramic view of all the circumstances of this case, the place were the trespass occurred, the nature of the danger etc., whether the engine-driver D. W. 3 did not know of and did not have good reason to anticipate the presence of the trespasser P.W. 3 on the railway track at the time of accident. The evidence of D.W. 3 is that after getting green signal at Kodambakkam he was running the train at a speed of 30 miles per hour with the engine search-light on and because, of the curve in the track just 50 yards north of the gate, the gate in question was visible only when the engine was about 30 yards north of it and not 200 yards as suggested by the learned Counsel for the appellant. However the evidence of D.W.3, cannot be controverted because he is the man who has sighted the taxi at a distance of 30 yards. More over, it is the evidence of P.W. 3 himself that when his vehicle was on the eastern : most railway track he heard people shouting that the train was approaching and that the impact occurred within two or three seconds of that noise. So everything would have happened within two or three seconds. Even on this admission of P.W. 3 the version of the engine driver that he sighted the taxi at a distance of 30 yards is acceptable and the train would have taken only two or three seconds to cover the said distance at the rate of 30 miles per hour. It is the evidence of D.W. 3 that he applied the brakes immediately but he could not stop the train on the spot, and in spite of the application of brakes the train moved on and stopped at a distance of 100 yards after the impact. Mr. K. Ramaswami appearing for the appellant argued that there is an inconsistent version between the evidence of D.W. 2 and that of D.W. 3 regarding the showing of the danger signal by the gateman to the in-coming train. This inconsistency is immaterial because D.W. 3 would say that even if he had seen the danger signal the train could not have been stopped before reaching the gate. When the driver did see the taxi on the track there was no sufficient time for him to pull up or to bring it at hall by applying the brakes before the impact took place. He has stated in Exhibit P-10 before the Enquiry Committee that he whistled before approaching the obstruction. Under these circumstances it cannot be said that the driver did not take any precaution against the possibility of the occurrence. It stands to reason that in a moment of extreme peril and difficult position, when the danger is unforeseen and mostly unexpected, D.W. 3 cannot be expected to have a perfect presence of mind accurate judgment and promptitude. It is quite clear from the evidence and the manner in which the occurrence has taken place, that upto the last stage of the incident D.W. 3 had no reason to anticipate the presence of the car on the track. Moreover, by no stretch of imagination can it be said that there was a wilful or reckless disregard by the engine driver of the presence of the taxi driver P.W. 3 so as to constitute a breach of duty on the part of D.W. 3 or lack of humanity or any failure to perform any lawful duty on his part. Under these circumstances, the engine-driver also cannot be attributed with want of nerve or skill which would amount to negligence. So, we hold that the engine driver did not cause the impact either by his wilful negligence or reckless carelessness towards the trespasser.
18. From the foregoing discussions we hold that P.W. 3 committed the unlawful act of trespass into the railway track and the accident was not caused due to any negligence on the part of the Railway Administration or its staff; but, on the other hand, it could not be averted in spite of the best efforts taken by the Railway Administration. So, the plaintiff, as the owner of the taxi, has no cause of action against the Railway Administration .
19. In the result, we confirm the decree and judgment of the Court below and dismiss this appeal with costs. The Court, fee, due on the appeal memorandum will be paid by the appellant.