Judgement

Appeal from a decree of the High Court; (December 23, 1904), reversing a decree of Tyabji J. (July 14, 1904).

The action was brought to recover damages for injuries to the plaintiff under the circumstances stated

Law. Rep. 34 Ind. App. 115 ( 1906- 1907) Kessowji Issur V. Great Indian Peninsula Railway Company 35

in their Lordships judgment. The negligence complained of was that the compartment in which the plaintiff was travelling overshot the platform and was drawn up opposite to the foot of a slope where the lighting was insufficient. The defendants traversed the allegation that the compartment in question was drawn up opposite to the slope, and asserted that it was drawn up opposite to the platform itself, and, after traversing the allegation that there was insufficient light on the slope, alleged that the plaintiff was well acquainted with the station and the slope, and that his injuries were caused by his own negligence and carelessness, and could have been avoided by the exercise of ordinary care and caution on his part.

The findings on the evidence as to negligence are thus stated by Tyabji J. —

" The conclusions of fact at which I have arrived from a review of the evidence are that (1.) This second-class carriage in which the plaintiff was travelling had overshot the platform ; (2.) that this second-class carriage stood opposite the slope of the platform ; (8.) that it was dark; (4.) that the purpose of the defendants, their intention, their avowed object, and their instructions to their servants were to draw up the train at the platform—that although, as the witnesses state, the trains did now and then overshoot the platform, they were usually at the platform; (6.) that the plaintiff, who had constantly travelled by this train between Victoria terminus and the Sion Station, had in his own experience never known the train to overshoot the platform, but he always got down on to the platform from his carriage; (7.) and that no warning of any kind was given to the plaintiff, and he was not in any manner made aware that his carriage was not opposite the platform as usual, but was opposite the slope.

“I say it was dark, because the train arrived at Sion at about 53 or 54 minutes past 6. On that day the sun set at 6.12 or 6.13, and the twilight lasted 38 minutes; therefore, the daylight had ceased at 6.13, and the reflected twilight had ceased at about 6.51. And this accident took place at about 6.54; that is to say, after all light from the sun had entirely disappeared.

" As regards the artificial light, there were four lamps; but they were at great distances from each other. They did not throw sufficient light, even on to the platform; but if they did, none of them threw any light on this particular slope, where I hold it proved that the plaintiff fell.

" This slope (the highest point of it is three feet above the ground) is about sixteen feet in length, and it is obvious that, if there is not sufficient light for a man to see exactly where he is alighting, and if he imagines that his carriage is drawn up at the platform as usual, it is obvious, I say, that he can sustain these injuries without any neglect or default on his own part.

"And I, therefore, hold that the defendant company was negligent in drawing up this carriage at the slope, in not providing sufficient light to the plaintiff to see that it was drawn up at one slope and not at the platform, and in not cautioning him in any way that he was to use more than the usual amount of care that the law demands from the passengers by these railways."

The appellate Court, on the application of the defendants under s. 568 of the Civil Procedure Code, ordered that further evidence should be taken without recording any reasons for so doing. It found that the appellants carriage did overshoot the level of the platform and was drawn up alongside the slope; and that the appellants injuries were received by a shock or fall on alighting, and not by a fall after he had a