1. This is a claim by James William Nunn against the Calcutta Tramways Co., Ltd. claiming, damages for personal injuries sustained by him in an accident, which occurred on 10th September 1926, when admittedly the plaintiff was injured by a tramcar belonging to the defendants. The plaintiff says that the defendant Company were guilty of negligence, and he claims to recover from them a substantial sum by way of damages, because by reason of the accident he has lost his employment as an engineer in the service of the Eastern Bengal Railway Company, where he was employed on a salary of something like Rs. 1,200 a month together with certain allowances. The defendants by their defence deny that they were guilty of any negligence. They say that the accident was caused solely by the negligence of the plaintiff himself and, in the alternative, they say that, in any event, even if they were guilty of negligence, the plaintiff was guilty of contributory negligence and that the accident was brought about by the negligent conduct both of the plaintiff and of the defendants' driver.
2. No real difficulty arises as to the law which is applicable to a matter of this kind. A great many cases have been put before me, but they only serve to emphasize the proposition that when a collision is brought about by negligence on the part of both the vehicles, or the I vehicle and the person coming into collision, if nevertheless, one of the two parties could, by using due care and diligence have avoided the accident, then the negligence of the other, even I if ho contributed in a sense to the accident, does not necessarily disentitle him to succeed.
3. A great many expressions have been used from time to time in cases of this kind, as for example 'the last opportunity' or 'causa causans' and 'causa sine qua non,' but, put simply, it all comes to this the real question is what was the last act of negligence that brought about the accident? In the case before me the real question is whose was the act of negligence, it there was negligence, which actually brought about the injuries of which the plaintiff complains. There were certain admitted facts in the case. It was not disputed that the accident did occur on 10th September 1926, at or about 4-30 in the afternoon, and that by such accident the plaintiff suffered serious personal injuries. It is admitted that the accident occurred in Dalhousie Square, and that it happened because the plaintiff had walked from the side (path on to the tramway track.
4. The plaintiff's version of the matter is this: He says that on the afternoon in question he was desirous of proceeding to his home at Dam Dum : and for that purpose he was intending to take a tramcar to convey him to Sealdah station. He crossed Dalhousie Square somewhere on the west side of the square and then proceeded along the north side of the Squire to meet a ear of the kind which he desired to take, that is, a car which was likely to be marked as a 'Dharamtala' car. The plaintiff says that as he was proceeding eastward along the north side of the Square he saw a car approaching which he took to be Dharamtala car, and indeed he says that it displayed the appropriate notice-board in front of it, but, says the plaintiff, he was expecting that a car going to Dharamtala would be a car of the kind which is known as the 'open-type' car, and he was accordingly expecting to find on the near side of the car a series of openings leading direct to transverse seats stretching from one side' to the other. The plaintiff says that though the car was marked as a 'Dharamtala' car, it was not of that particular type, or he thought it was not, because he could not detect these openings on the near side of the car, and that thereupon he proceeded to walk in front of the car, for the purpose of entering it from the other side. Having looked to the left to ascertain whether any car was approaching from the westward, he proceeded across the southern track and held up his hand to the driver of the Dharamtala car to warn him to slow down, and then he proceeded down the space between the two tracks, which has been described as the 'clearway,' for the purpose of entering the car on the off side.
5. No sooner had he got into the clearway, or almost immediately afterwards, than he discovered that after all there were no openings on the offside of the car at all; and accordingly he abandoned all idea of entering that particular car and proceeded down the inter-track space with the intention of crossing behind the car and so regaining the footpath after the car had passed him. The plaintiff says that he had proseeded some 12 or 14 paces down the inter-track space when suddenly and without warning of any kind he was struck from behind by a car which was coming from the west towards the cast, and which in the course of the case has been describe as the 'Nimtala car.' As a result of the impact, according to the plaintiff, he was then whirled round between the two ears. The plaintiff used the expression 'milled' between the two cars and ultimately was thrown to the ground and the wheel of one or other of these cars either passed over his left foot or at any rate struck it in such a manner that it was very seriously injured. (The judgment then discussed the injuries sustained by the plaintiff and found that there was no real controversy with regard to the 'same and also discussed the previous conflicting accounts given by plaintiff as to what really occurred on the afternoon of 10th September 1926.) The first of these statements is contained in a letter (Ex. C) which was written by the plaintiff or rather on his behalf to the Tramway Company on 30th October 1926. This statement of 28th October was taken down by the plaintiff's wife at his dictation while he was still confined in hospital and in it he says:
At about 4-40 p.m., on 10th September, I was on the aide of the Dalhousie Square opposite Writers' Building, on the pavement looking out for a Dharamtala tram; seeing one approaching at a quite slow space, I looked out for an entrance door. Not seeing one I concluded the entrance doors were on the other side, and I crossed over the track and walked down between the two tracks to find the entrance and board the car. Finding that I had made a mistake, I was walking on, intending to cross back to the pavement behind the rear of the oar, when I was struck from behind by a tram car coming from the opposite direction to the one I was intending to board. Both cars were travelling dead slow, or I would have been knocked down a once. I managed to keep my feat for some time, and hoped they would stop, but both kept moving, milling me between them, until finally I fell between them and one wheel of the Dharamtala car passed over my left foot, and then both cars came to a stand.
6. It is to be observed that that account, which the plaintiff gave on 28th October 1926, a little more than a month and a half after the accident, tallies substantially with the account which he gave in the witness box in the course of this trial, but a month or two after (on 10th January 1927) a letter was written to the defendants by the plaintiff's solicitors, Messrs. Clarke, Bawling and Kerr, in which they said:
Our client, Mr. J.W. Nunn, has placed with us all the correspondence and the papers in connexion with injuries received by him by a tramcar belonging to your company and has instructed us to address you as follows:
That at about 5 o'clock in the afternoon of Friday, 10th September last, while two tram cars belonging to your company wars being rashly and negligently driven opposite Writers Building, Dalhousie Square North, our client, who was crossing the roadway from Dalhousie Square towards Writers' Buildings, was caught between the CMS, knocked down and run over, thereby sustaining serious injuries to his body and shock to his system necessitating his immediate removal to hospital and then to a nursing home where he still remains under treatment.
7. And then the letter goes on to make a claim upon the defendants.
8. The story of the occurrence, as contained in this letter, is clearly different from the one which the plaintiff himself gave in the statement which he sent either by himself or through his wife to the defendants on 28th October. At the time when this solicitor's letter was written, it would appear that they had in their possession certain information which they had acquired as the result of advertising for witnesses of the accident because two witnesses have been called in the course of this case, a Mr. Scott and a Mr. Banerjee, both of whom say that they answered an advertisement which appeared in 'The Statesman' and also in 'Forward' and that they sent to the plaintiff's solicitors a statement giving their account of the accident which they say they saw on. 10th September 1926. It is to be noted-in passing that the statement which' these witnesses made, and indeed, the evidence which they gave in the witness box here, corroborates to a certain extent the account of the accident as given by the plaintiff in his original letter of 28th October. That being the case, it is difficult to understand how it came about that Messrs. Clarke, Rawlins and Kerr wrote the letter of 10th January because their version of the accident which they there gave is wholly inconsistent with that which the plaintiff himself had previously given to the defendants and which he has subsequently given in this witness box.
9. Further, to those two divergent accounts of the accident, yet another and different version or what is apparently a different version is given in the plaint in this suit, for in para. 3 of the plaint it is stated that:
At or about 4-40 p.m. on 10th September 1926, and as he was preparing to mount and enter one of the defendants' tram cars then proceeding in a western direction along with north side of Dalhouse Square in Calcutta, the plaintiff was violently struck by the defendants tram oar No. 141 coupled to trailer No. 141 then proceeding in an easterly direction, and 30 carelessly, negligently and unskilfully managed and driven by the defendant company's servant, that the plaintiff on being finally struck as aforesaid, was made to fall between the two tram cars....
10. In that paragraph it seems clear that the plaintiff is setting up the case that he was struck
as he was preparing to mount and enter one of the defendants tram oars then proceeding in a westerly direction.
11. It is obvious that that averrment in the plaintiff's plaint is on the face of it inconsistent with either of the two stories which he had previously given or caused to be given to the defendants in the letters to which I have already alluded. It may be, however, that the explanation of that paragraph is that what the plaintiff really intended to say or what he intended the pleader to say was that he was struck at a time when he had intended to board the defendants tramcar (the one which I have referred to as the 'Dharamtala' car), though I think it would be a straining of the language used if I were to take the view that para. 3 meant anything other than that the plaintiff was really mounting or about to mount one of the defendants cars at the moment when he was struck. Presumably the plaint was drafted after a careful consideration of the plaintiff's case.
12. Now the plaintiff in answer to a question from me admitted that the course he took was of a negligent character and indeed it must have been apparent to anyone who heard the evidence that the conduct of the plaintiff himself was indeed lacking in care and prudence and in the ordinary caution which a reasonably-minded person would take in the circumstances, because on the plaintiff's own showing he left the footpath and grossed in front of an on-coming car and then proceeded to walk down the inter-track space after taking at the most only a casual glance to his left to ascertain whether any traffic was approaching from the westerly direction paying no real heed to the traffic in his rear or considering the possibility of his being struck from behind. (Plaintiff's evidence was then discussed.) As I have stated I find as a fact on the evidence before me, and indeed upon the plaintiff's own version of the matter, that he was guilty of negligence, but that is really the second stage of the case, because before the plaintiff could succeed in any event he has to discharge the burden which lies upon him of showing that the defendants were guilty of negligence. For the purpose of determining that question it is necessary to consider the behaviour of the Nimtala car.
13. Mr. Barwell has pointed out that upon the assumption that the Nimtala car was not proceeding at a pace greater than that of six miles an hour, it might have moved from the stopping place which has been described as the 'Black Board Stop,' to the point where the accident occurred within the space of less than sixty seconds at the very outset. I think upon the evidence that that is probably substantially correct because the evidence shows that the actual impact occurred practically in the centre of the north side of the Square, that is, opposite an opening which there is in the boundary railings of the garden in the centre of the Square, and putting the accident at that point it comes to this : that there is a distance of something just over 300 feet between the stopping place and the point of impact.
14. It is to be borne in mind that the plaintiff said he had no knowledge whatever that the Nimtala car was approaching from behind until the very moment when he found himself struck and eventually hurled to the ground. I have no doubt that the plaintiff is correct when he says that he had no knowledge that this car was 'on him' (if I may use that expression) because otherwise he would undoubtedly have turned round or taken some steps to have averted the collision. I think the real truth is that the plaintiff was in ignorance of the imminence of the collision until at any rate just before it actually took place.
15. The driver of the Nimtala car, a man called Buldeo Misser, gives this account of the matter. He says that when be first left the stopping place he could see all the way down the track and that after a moment or two he saw the Dharamtala car approaching; and he saw the plaintiff almost at the same time. He saw the plaintiff passing in front of the Dharambala car. Apparently he actually saw the plaintiff leave the footpath and proceed across the track. He says that by that time he had slowed down his car because there is a rule that a car should be slowed down after passing the 'section-box.' Then he goes on to say that the plaintiff on reaching the space between the two pairs of lines turned towards the east and walked a few paces, two or four, and stood there. Then, says the driver, the Dharamtala car came up and the plaintiff thereupon caught hold of the iron stanchion on the trailer and attempted to climb on to the car.
16. It is clear from the answers which driver Misser gave to me that in fact at no time did he intend to stop his car as he considered there was no need to do so because he thought the plaintiff would get out of the way. What he says is this:
As a matter of fact as my oar was moving slowly a slight tightening of my brake was sufficient for my purpose.
17. In answer to the next question he says:
It was not completely stopped, but before my car came up to him (the plaintiff) it was completely under my control.
18. And the explanation which the driver of the Nimtala car gives for the actual collision was that although he had his oar completely under control he did not actually bring it to rest because he thought that the plaintiff would move out of the way of the on coming car whereas instead of doing that the plaintiff tried to mount on the Dharamtala car with the result that there was an unforeseen and unexpected situation created whereby the plaintiff, instead of keeping clear of the Nimtala car, was actually carried forward by the Dharamtala car in such a way as to cause him to be struck by the Nimtala car.
19. It is conceded by Mr. Barwell on behalf of the plaintiff that if the version given by the driver of the Nimtala car is substantially correct then the plaintiff would be out of Court in this case and the defendants are not liable. If in fact the plaintiff did board or attempt to board the Dharamtala car it might be right to take the view that the defendants were not negligent at all in the circumstances. Assuming that the driver of the Nimtala car had it completely under control, it may be that up to that point at any rate there was no negligence; but even supposing there was negligence on the part of the defendants in the first instance by reason of the fact that the driver did not completely stop the Nimtala car, obviously there was such negligence on the part of the plaintiff as would disentitle him to succeed because no question could then is as to what was the approximate cause or the cause causing of the actual impact. In those circumstances as described by the driver of the Nimtala car undoubtedly the impact would be due to the fact that the plaintiff had not only put himself into a situation where there was a potential danger, but had actually caused himself to be carried forward towards the on coming Nimtala car. No question could possibly arise in those circumstances as to whether or not, assuming there was negligence on the part of both sides, the defendants driver could, by using due care, still have avoided the consequence of the plaintiff's negligence. The whole thing happened within such a comparatively short apace of time that if by reason of panic or otherwise the plaintiff did mount the Dharamtala car, there, was obviously no lost 'opportunity' for the defendants' driver to avoid the accident.
20. I desire to say at this stage that if the plaintiff's story as told in the box is substantially correct, although I am of opinion that he was guilty of negligence in crossing the tramway track in the way he did and proceeding down the inter-track space, which obviously is too narrow to permit anyone to walk along with safety when cars are passing although I consider that the plaintiff was negligent in putting himself into that position, that would not justify the defendants driver in allowing his car to proceed in such a way as to strike the plaintiff, and if he did so, clearly the defendants would be guilty of negligence. In that connexion there was cited to me the case of Gaffney v. Dublin United Tramways Co. Ltd  2 I.R. 472. That was a case of a partially deaf man crossing the thoroughfare in Dublin who was knocked down and injured by a tram car. The driver prior to the accident sounded the gong and shouted, but he did not slacken speed. The jury found that the plaintiff was negligent in not keeping a proper lookout, but that the driver by exercise of due care could have avoided the consequence of the plaintiff's negligence.
21. Now, in this instance I am satisfied from the evidence given by the defendants driver, and from the evidence given by the two conductors of the Dharamtala car that the driver of the Nimtala car did in fact sound his gong or his bell and did shout a warning to the plaintiff. The plaintiff says that he heard neither the bell nor the shout, and in fact (as I have already mentioned) knew nothing about the matter at all till the car actually struck him. In connexion with this point Mr. Barwell also referred to a casa B. and W. Paul, Ltd. v. Great Eastern Railway Co.  36 T.L.R. 344, which is very germane to the present circumstances. In that case Lush, J. said this:
He (the person who ordinarily would be in the position of the plaintiff) certainly, according to the ordinary meaning of the expression, contributed to the accident by his own negligence. But it does not follow that he was guilty of contributory negligence in law. What is the true test to apply? What direction should be given to a jury on the facts of this case? It must depend on the facts of the particular case whether they should be told if the plaintiff could, by the exercise of reasonable care, have avoided the accident, they should find for the defendants, or that if the defendant could, by the exercise of reasonable care, have avoided running over him, they should find for the plaintiff. Neither direction would be universally right. If the first was always right, then if a man lay down on a highway where he knew traffic would pass, he could not recover damages against the driver who seeing him there, negligently drove over him.
22. The real test, in my opinion, is this : whether the driver of the vehicle realizes or ought to realize that the pedestrian, who is in the path of the vehicle or in such a position that the vehicle may possibly strike him, does not know that the vehicle is there and therefore is not likely to move out of the way. It is clear that the driver of the vehicle, however much he shouts or rings his bell, is not then entitled to drive on recklessly and run over someone merely because that person does not get out of the way Therefore in the present case, if the facts were that the Nimtala car proceeded along the track and struck the plaintiff solely by reason of the fact that the driver of the Nimtala car did not bring his car to a standstill, I think not only would the defendants have been guilty of what I may call initial negligence, but they would clearly have shown that want of due care which might have avoided the accident despite the contributory negligence of the plaintiff in having put himself into a dangerous situation.
23. It follows from that, therefore, that even if I come to the conclusion, as I do that the plaintiff is guilty of negligence, yet if the defendant Company could in the result, by the use of ordinary care and negligence have avoided the mischief which in fact happened, then the plaintiff's negligence will not exculpate and excuse the defendants. Like all cases of this class the matter in the end resolves itself solely and wholly into a question of fact. There is really no difficulty whatever with regard to the law which is applicable. The law applicable to this class of case is tolerably clear. Prima facie if A is injured by the negligence of B, A can recover damages against B, by reason of that fact. If the occurrence is occasioned, or partly occasioned, by negligence on the part of A as well as on the part of B, then if the negligence of both parties really brings about the accident, then A cannot recover from B, But over, and above that, if despite the negligence of A, B might still have avoided the accident by the use of ordinary care and diligence, then B will still be liable though in certain circumstances, as was pointed out by Lush, J., in the case to which I referred just now, it may be that A cannot recover against B because he himself might have done something to have avoided the consequences of the joint negligence of himself and B.
24. It has been said in this case by Mr. Langford James on behalf of the defendants that the real approximate cause of the accident was the fact that the plaintiff did not keep a proper look out or keep his ears open, with reference to the possibility of an on-coming car from west to east, and that that was really the cause of the accident, or else, if he did know of the approach of the Nimtala car, had he chosen he would still have had time to have escaped injury either by going across the track in front of the Nimtala car to the roadway or by keeping ahead of it, especially as admittedly the car in any case was only moving at little more than a walking pace. The plaintiff in his original version of the matter said that both ears were going slowly. I have no doubt, and I find as a facts that that was correct. This is not a case where an accident was caused by excessive speed on the part of the driver of the vehicle concerned.
25. The real question that I have to determine is this : Did the plaintiff merely walk down this inter-track space intending to await his chance to pass behind the Dharamtala car? If so, I think, despite his negligence in putting himself into that position, he would be entitled to succeed against the defendants by reason of the fact that the driver of the Nimtala car ought to have realized that the defendant was not going to move out of the way and consequently ought to have brought his car to a complete standstill-having it under control, as he says before it actually reached the plaintiff and struck him. On the other hand, if I take the view that the plaintiff's version is not quite accurate, and that in fact he did attempt to climb upon the Dharamtala ear, then, as I have already said, there was, in my judgment, no time for the defendant's driver to have done anything more than he did in fact do. In that case he was faced by an unexpected and totally abnormal situation because I do not think it can be said that a driver of a tram-car can reasonably be expected to contemplate that any ordinary human being will attempt to board a tramcar coming in the opposite direction from the offside. It may be that the driver of the Nimtala car was justified in the first place in thinking, as he says he did think, that the plaintiff would get out of his way, and it was only because the plaintiff took a totally unexpected and abnormal course by getting on the Dharamtala car that the accident occurred.
26. I pointed out during the hearing of the case that the question of liability really lay within a very narrow compass as it resolved itself into the pure question of fact of whether or not the plaintiff did attempt to board the westbound tramcar. What is the evidence with regard to that? The driver of the Nimtala car said quite distinctly that he was watching the plaintiff for a comparatively lengthy period of time--I say 'comparatively' because the whole thing happened within the space of a minute or so and that he saw the course taken by the plaintiff. Ha saw him come from the footpath, cross in front of the Dharamtala car, get into the inter-track space, and then proceed down the side of the Dharamtala car, and thereupon attempt to mount on the trailer of the Dharamtala car. That is a perfectly connected and consistent story. Whether I ought to accept it or not is of course another matter because it is said on behalf of the plaintiff that the story which was put forward by the defendants is in the nature of an after-thought, and is to all intents and purposes an invention on the part of the defendants' witnesses. The story of the tramway driver Misser, however, is corroborated by the evidence of the two conductors. There was the conductor who was on the trailer of the Dharamtala car who, I am bound to say was not an altogether satisfactory witness; at any rate he was a very stupid, witness. Incidentally I might point out that all three of these eyewitnesses called by the defendants are no longer in the employment of the defendant company. (The judgment having discussed the evidence of the conductors of the tramcars observed): The observation which I make with regard to-the whole of the evidence of defendants' witnesses is this, that the whole story is so strange and even fantastic that I do not think it possible that these men could have invented it of their own accord, and, therefore, unless it is more or less a truthful account of the matter it can only be that some one has suggested to them that what really happened was that the plaintiff tried to board the trailer of the Dharamtala car and did not succeed. I cannot however take the view that there was any dishonesty on the part of the tramway company in regard to the presentation of this case. Now, as against that version of the matter, there is the plaintiff's, own story to which I have already referred and in support of it he has called two witnesses whose evidence was secured as the result of an advertisement in the newspapers. (The judgment observed that in the circumstances of this case it was not improper to advertise for witnesses and discussed the evidence of Mr. Scott, one of the witnesses, who responded to the aforesaid advertisements and remarked that his evidence could not be accepted word for word and proceeded to discuss the evidence of Mr. Banerjea, the plaintiff's other witness, who also responded to the aforesaid advertisements.) All the evidence given by Mr. Banerjee resolves itself to this: that the Nimtala car was going at such a rapid pace that he thought something might happen and he was so frightened that he stepped away, but I think this evidence does throw some light in the matter.
27. Having carefully considered the whole of the evidence in the case I came to the conclusion that the real explanation of the accident is this: This plaintiff was for some reason anxious to get away to Sealdah station. Why he should have been so stupid as not to have waited at the corner of Dalhousie Square it is difficult to imagine, because by no possibility could he have saved time by going to meet his tram car. However, he does not wait at the 'stop,' but goes forward and then sees a car coming towards him, which is or ought to be his car, and then he discovers or thinks he has discovered (wrongly as it proved) that the openings were not on the near side as he anticipated, and in a fit of rashness and thoughtlessness he dashes off the path and goes across in front of the Dharamtala car. It is true he holds up his hand to the on coming car, but I think he did very little more than glance very perfunctorily to his left, even if he did that much, and what in effect happened was that it was a matter of chance whether the plaintiff got on to the Dharamtala car or at any rate to a place of safety before he was overtaken by the Nimtala car. In other words the plaintiff took the risk of going into the roadway and putting himself into a dangerous position, thinking he had time to get round and get on board the Dharamtala car with safety. It is admitted by him. however and indeed it is part of his case, that his intention in going in front of the Dharamtala car was to board id from the offside, and whether in a desperate attempt to get on the car he tried to mount on the projection which undoubtedly there is in front of the trailer or what is far more likely, he suddenly realized that the Nimtala ear was upon him, and he practically made a clutch at the trailer, it is impossible to say, but I am quite satisfied, and I find as a fact upon the evidence, that he did make some attempt to get on to the Dharamtala trailer: a manoeuvre which resulted in his being carried nearer the Nimtala car, and had the effect of throwing out all the calculations of the Dharamtala driver as to what the plaintiff was going to do. In the circumstances, I think there was no opportunity to the driver of the Nimtala car to stop his car in time. Had the plaintiff not to put his hand upon the Dharamtala trailer at all then of course there would have been no excuse for the driver of the Nimtala car not stopping before he actually reached the plaintiff. Finding as I do, that the plaintiff clutched, if not actually boarded, the Dharamtala car, I think in the circumstances his negligence was such as disentitles him to succeed in this suit. It may be that there was indeed I think there was negligence on the part of the tramway driver in not stopping his car dead at the outset, but undoubtedly there was negligence on the part of the plaintiff and I think it was the negligence of the plaintiff which was the real cause of the accident, or in any case it was of such a character that there was no last opportunity to the defendants servant to take other steps in the circumstances such as might have saved the situation. I find as a fact that it was the plaintiffs' own negligence which was the effective cause of the accident. The plaintiffs' claim fails accordingly and the suit is dismissed.